A very busy week, so where to start? Maybe with…

… blasphemy in Ireland

In 1999, the common-law offence of blasphemy was ruled incompatible with the requirement in the Constitution of Ireland for religious equality and a new statutory offence protecting any religion against “publication or utterance of blasphemous matter” was introduced in 2006. On Friday, Ireland held a referendum on the proposal to delete the reference to blasphemy in the Constitution: exit polls commissioned by RTÉ and the Irish Times were both predicting a two-to-one vote in favour of its removal.

… and in Austria

We (and several other sites: see below) noted the judgment in ES v Austria [2018] ECHR 891, in which the ECtHR rejected the applicant’s complaint that her criminal conviction for “disparaging religious doctrines” – in effect, blasphemy – had violated her right to freedom of expression under Article 10 ECHR. The judgment has generated a degree of controversy around the issues of balancing conflicting rights and the margin of appreciation to be given to states parties. Perhaps it’s one for the Grand Chamber.

NC7

On Wednesday 25 October at the Report stage of the Northern Ireland (Executive Formation and Exercise of Functions) Bill, the House of Commons voted 207 to 117 to approve New Clause 7 (NC7) which would require the Secretary of State and senior officers of NI departments to address incompatibilities between legislation applied in Northern Ireland and the UK’s human rights obligations.

First conviction for operating an unregistered religious school

The BBC reported the first-ever convictions for operating an unregistered school in England. Westminster Magistrates’ Court convicted Nacerdine Talbi and Beatrix Bernhardt over the Al-Istiqamah Learning Centre, which taught about 58 pupils in a west London office block.

They had argued that it was a study centre where home-educated children had part-time tuition but the Chief Magistrate, DJ Arbuthnot, in the first verdict of its kind, held that evidence showed that the Centre was “being operated as an unregistered independent educational institution providing full-time education”. She concluded that the Centre was “providing all, or substantially all,” of the education for those attending for 25 hours and was being operated as an unregistered independent educational institution providing full-time education.

The defendants were given a community order and the institution itself was fined £100. The verdict was welcomed by HM Chief Inspector and Ofsted.

Morrison’s, data leaks and vicarious liability

On Monday, Morrison Supermarkets lost its appeal against a High Court judgment that it was vicariously liable for the criminal acts of a disgruntled employee who posted thousands of its employees’ details online and who subsequently got eight years for breaches of the Computer Misuse Act 1990 and the Data Protection Act 1998. Morrisons was itself, in effect, a victim of the crime and, at first instance, Langstaff J had expressed his misgivings at the conclusion that he was obliged to reach.

However, the Court of Appeal was unmoved. In WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339, the Court [Etherton MR, Bean and Flaux JJ] concluded as follows:

“75… there is nothing unusual or novel in legal terms about this case, but there is one novel feature to it. We were not shown any other reported case in which the motive of the employee committing the wrongdoing was to harm his employer rather than to achieve some benefit for himself or to inflict injury on a third party … As we said at [32] above, this was the point which troubled the Judge and which appears to have persuaded him to grant Morrisons permission to appeal.

76. Since the decision of the House of Lords in Lloyd and Grace, Smith and Co [1912] AC 716, which is the foundation of the modern law of vicarious liability, it has been clearly established that an employer may be vicariously liable for deliberate wrongdoing by an employee … {W]e do not accept that there is an exception to the irrelevance of motive where the motive is, by causing harm to a third party, to cause financial or reputational damage to the employer.

[…]

78. There have been many instances reported in the media in recent years of data breaches on a massive scale caused by either corporate system failures or negligence by individuals acting in the course of their employment. These might, depending on the facts, lead to a large number of claims against the relevant company for potentially ruinous amounts. The solution is to insure against such catastrophes; and employers can likewise insure against losses caused by dishonest or malicious employees…”

Appeal dismissed: Morrison’s has said that it will seek permission to appeal to the Supreme Court.

The relevance of all this to law and religion might not be immediately obvious – but faith-groups hold a lot of data about their members and adherents and, on the Court of Appeal’s understanding of the current law, will almost certainly be held vicariously liable for a breach if someone with access to the data makes criminal misuse of it.

[And see Rosalind English’s note referenced below]

Operation of the CDM

In June we reported that the Sheldon Hub had established a “Project CDM” with the objective inter alia of “reducing the suffering of defendants and other participants in proceedings under the Clergy Discipline Measure 2003. Last week, the Church Times explored this initiative further in Clergy Discipline Measure: a harsh discipline? As we were completing our review of this and other assessments of the operation of the CDM, the Church of England published the decision and penalty in the matter of the Revd Simon Robert Marsh in a case of serious abuse of a child who was under the age of 18 when the relationship first began and a teenager at the time of the misconduct. The sexual relationship was not totally consensual, involving the use of force, and there was an element of abuse in the relationship. [The report in the Church Times that the Respondent “used his position of trust to coerce into a sexual relationship, rape, and abuse” is misleading regarding the rape allegation; paragraph 12 of the Determination states that although the Respondent was arrested on suspicion of rape and sexual assault, no charges were brought after a long police investigation].

The Tribunal agreed unanimously that all allegations were proved regarding the serious and grave allegations of sexual misconduct and of an inappropriate relationship between the Respondent and Miss XY. The Tribunal considered that the appropriate penalty in this case, in all the circumstances and having particular regard to the gravity of the proven allegations as well as the aggravating features mentioned above, was removal from office and prohibition for life.

With regard to the operation of the CDM, no new legal issues were considered. In terms of the “harsh discipline of the CDM”, in imposing the maximum penalty the Tribunal stated that it must, as Counsel for the respondent submitted, act compassionately, “but this compassion must be for both the Respondent and Miss XY and her feelings. The Tribunal also had to consider wider factors: the reputation of the profession and the impact on those who are in the pastoral care of the Respondent and the impact on the wider church”.

Our assessment of the Tribunal decision and penalty is here, and the more general consideration of some different perspectives of the CDM will be posted next week.

And just when you thought it was safe to order a cake…

… a petition for certiorari (Anglice, for a quashing order) was filed on Monday with the US Supreme Court in Klein v Oregon Bureau of Labor and Industries. The Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that a bakery, Sweetcakes by Melissa, had violated the state’s public accommodation law when it refused to design and create a wedding cake for a same sex wedding. The petitioners argue that there are factual uncertainties in Masterpiece Cakeshop that have presented difficulties in determining whether a baker has a valid free exercise claim:

“Those difficulties are not present in the Kleins’ case. Because they sold only custom wedding cakes, there is no possibility that the Kleins refus[ed] to sell a cake that has been baked for the public generally and the record is clear about the Kleins’ process of designing, creating, delivering, and assembling their cakes …Thus, this case squarely presents the question whether the Free Exercise Clause protects an artist from being forced to devote her talents to celebrate a wedding ritual to which she conscientiously objects on the basis of ‘decent and honorable religious . . . premises’ Obergefell, 135 S. Ct. at 2602.” [With thanks to the indefatigable Howard Friedman]

And Jack Phillips, of Masterpiece Cakeshop fame, is now suing the State of Colorado after its Civil Rights Commission filed an official administrative complaint about his refusal to make a cake celebrating transgenderism. On Thursday, he filed a motion in the US District Court for Colorado seeking a preliminary injunction against the Commission, the Governor and the Attorney General. Watch this space – probably for rather a long time…

Now we are Four

On Tuesday 23 October, the Rt Revd Vivienne Faull, Bishop of Bristol, was introduced to the House of Lords to become the fourth woman bishop in the Lords Spiritual. She joins the Rt Revd and Rt Hon Sarah Mullally DBE, Bishop of London, the Rt Revd Rachel Treweek, Bishop of Gloucester and the Rt Revd Christine Hardman, Bishop of Newcastle. Under the terms of the Lords Spiritual (Women) Act 2015, until 2025 if any woman is appointed to be a diocesan bishop, she will automatically join the House of Lords when the next vacancy occurs on the Bench (or straight away if it is to one of the five ex officio sees). A list of diocesan bishops not currently in the House of Lords, but who are awaiting seats (in the order that they will enter when a vacancy arises) is maintained by the Church of England here, (scroll down).

Magna Carta

Thursday’s unsuccessful attempt to steal the copy of Magna Carta held by Salisbury Cathedral caused consternation amongst the hacks and Twitterati regarding the use or not of the definite article/indefinite article/&c. The prize for variety must go to the Huffington Post for its headline Man Arrested For Trying To Steal Magna Carta From Salisbury Cathedral, accompanied in the text by “a Magna Carta”, “the Magna Carta” and the attempted “correction” of a statement from the Cathedral of “[the] Magna Carta”. Becky Clarke commented, “Thanks to one of its clauses, dating from 1216, still being part of English law, the person accused will be guaranteed not be imprisoned without the lawful judgement of his equals”. All in all, for serious pedants (is there any other kind?) it was “pick your own”.

Quick links

• Paul Colton: Need for structured dialogue towards separation of Church and State: sermon by the Bishop of Cork, Cloyne & Ross on the current informal debates about separation of Church and State in Ireland.
• Deutsche Welle: Federal Labor Court rules on religious affiliation and employment: on the domestic outcome of Vera Egenberger’s discrimination case against Evangelisches Werk für Diakonie und Entwicklung eV, which we noted here.
• Ecclesiastical Insurance: Safe use of biomass boilers.
• Rosalind English, UKHRB: Criminal fine for discussion of Mohamed’s wives did not interfere with freedom of expression – Strasbourg.
• Rosalind English, UKHRB: Morrisons supermarkets liable for employee’s criminal publication of personal data.
• Atoosa Khatiri, RightsInfo: Blasphemy has been abolished in England and Wales but persecution continues.
• Richard Moon, The Conversation: The hypocrisy of Québec’s move to ban religious dress.
• Mark Movsesian, Law & Liberty:  Wedding Cake Wars Take an Interesting UK Turn: on the possible implications of the UKSC judgment in Ashers Baking for US law.
• Simon Perfect, Theos: Q: Have European judges just banned defamation of the Prophet Muhammad? A: No.
• Olivier Roy, Religion and Global Society: ‘A kitsch Christianity’: Populists gather support while traditional religiosity declines: there’s a lot of it about…
• Matthew Scott, BarristerBlogger: The ECtHR has not created a European blasphemy law but it has produced a lamentable judgment.
• Sarah Simons, RightsInfo: Do We Have A Right To A ‘Good Death’?
• Alexander Titov, The Conversation: Orthodox Church: biggest split in a thousand years triggered over Ukraine.

And finally… I

Quote of the Week, from the House of Lords Delegated Powers and Regulatory Reform Committee, HL Paper 194, 34th Report of Session 2017–19: Agriculture Bill:

“Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU … At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail.”

Which seems to be on a par with other Government planning for Brexit.

[With acknowledgements to Professor Mark Elliott for highlighting the Report]

And finally… II

Another snippet from the House of Lords: on Tuesday, Lord Balfe asked HMG whether they intend to legislate to prevent anonymous social media accounts and anonymous online forum posts. To which the Parliamentary Under-Secretary of State at DCMS, Lord Ashton of Hyde, replied: “My Lords, online anonymity is an important part of a free and open internet, but being anonymous online does not give anyone the right to abuse others.”

Maybe anonymity is indeed “an important part of a free and open internet” – but it has no place on an academic blog such as L&RUK, so we still aren’t going to publish anonymous comments.