Sacking GP from government drugs advisor post for ‘anti-gay’ views was lawful

spliffR (Dr Hans-Christian Raabe) v. Secretary of State for the Home Department [2013] EWHC 1736 (Admin)read judgment

Dr Hans-Christian Raabe lost his judicial review challenge to the revocation of his appointment as the GP member of the Government’s Advisory Council on the Misuse of Drugs (ACMD). His appointment was revoked less than a month after he had accepted an offer to join the ACMD, as a result of certain views about homosexuality expressed in a paper he had co-written in Canada some 6 years earlier.

This case deals with a heady cocktail of controversial issues, ranging from same-sex marriage to the level of crystal meth use in gay clubs, and from paedophilia to the ostracising of Christians because of their religious beliefs. Indeed, it hits so many hot-button issues at once that it is very surprising it has not yet received much media coverage, despite the judgment being handed down on 20 June.

The Facts

Dr Raabe had originally been appointed as the GP member of the ACMD in January 2011. Shortly afterwards it came to the attention of the Home Office through various media reports that Dr Raabe had co-authored a paper in 2005 entitled “Gay marriage and Homosexuality: some medical comments”. The purpose of this document had been to influence the then-ongoing debate about the legalisation of same-sex marriage in Canada.

The 2005 paper was a four page document covering various topics, including the health risks of the homosexual lifestyle (somewhat ironically, given the context of this case, there does not appear to have been much detail about higher rates of drug misuse). Most controversially,  the paper made various statements suggesting there was a connection between homosexuality and paedophilia. It also contained a number of contentions about the adverse effects of family breakdown. It was never actually published by Dr Raabe himself, but it had been posted on various websites by third parties. 

In the course of the appointment process Dr Raabe had been asked a standard question: was there anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the ACMD or the Home Office? He did not mention this article in answer to this question; indeed, his evidence was that he had not even thought of it as he didn’t see how it was relevant to the ACMD’s work. He did mention that he had previously stood as an MEP for the Christian Peoples Alliance Party, but this was not considered to be an issue.

In the event the 2005 paper was unearthed by the BBC and taken up with gusto by the Observer (meanwhile the Daily Mail was welcoming Dr Raabe’s appointment as an indication of a harder-line approach to illegal drugs).

Following a period of unwanted media attention, Dr Raabe’s appointment was revoked by the Secretary of State on the grounds that he had not disclosed his authorship of the paper in advance of his appointment, that the paper was polemical and assembled material in a way which disparaged gay people, their lifestyles and relationships, that the emergence of the paper was embarrassing (especially as s.149 of the Equality Act 2010 – the public sector equality duty – required the Department in the exercise of its functions to have regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups) and because of the impact on the effective functioning of the ACMD. Notably, the decision to revoke Dr Raabe’s appointment was contrary to the recommendation of Professor Bernard Silverman, the Government’s Chief Scientific Advisor, who thought on balance it would disrupt the working of the ACMD more to remove Dr Raabe from the post than it would to keep him. It was also, in a strange twist, criticised as unfair and discriminatory by the very commentators and journalists who had first broken the story.

Dr Raabe brought judicial review proceedings complaining that his dismissal was in breach of natural justice, that it took into account irrelevant considerations (including that: (i) the minister was also responsible for Equalities; (ii) the Department wished to promote itself as an employer of LGBT people; and (iii) Dr Raabe’s views were not consistent with the government’s) and that the decision to revoke was irrational as it interfered with his fundamental right to hold and manifest religious beliefs (and hence  must satisfy the test of anxious scrutiny per Bull v Preddy [2012] EWCA Civ 83).

The Judgment

Stadlen J produced a very long judgment, which sets out in great detail over some 276 paragraphs the content of the 2005 paper, the Judge’s critique of it, the events of January-February 2011 and the  submissions made by both parties. However, at the end of the day Stadlen J accepted the characterisation of the paper as polemical. Although he rejected the suggestion by the Secretary of State that it was “bluntly anti-gay” he accepted the argument that the material was assembled in such a way that it disparaged gay people and their lifestyles and it was for this reason that Dr Raabe had his appointment revoked. Although the paper was given a scientific veneer by the authors it was in reality an opinion piece, and Stadlen J concluded that it was likely to cause grave offence to homosexuals and adversely affect the smooth running of the ACMD.

The relevance of the latter point was that the ACMD was particularly concerned with poly-drug use in minority communities, including the LGBT community (that’s where the use of crystal meth in gay clubs comes into this case). The Judge concluded that it was reasonable for the Secretary of State to consider that having somebody holding Dr Raabe’s views on the ACMD called into question whether it would receive the co-operation from the LGBT community that would allow it to carry out its functions. Considering the media storm engendered by the emergence of his views he had been given proper opportunity to make representations as to why his appointment should be maintained, so there was not a breach of the rules of natural justice.

Dr Raabe did not directly pursue a challenge under Article 9 (freedom of religion and belief), but did raise it in the context of an irrationality challenge. This was also unsuccessful. The Judge commented that although this case did not turn on the difference between acts which are a manifestation of religious belief and those which are motivated by such religious belief, the opinions expressed in the 2005 paper fell into the latter category and therefore they were not protected by Article 9. As with Bull v Preddy, Dr Raabe did not face difficulty in manifesting his religious beliefs more generally. In any event the paper purported to be scientific and not religious in nature and it was not in dispute that the most obviously offensive features of the paper (i.e. the section about a link between homosexuality and paedophilia) did not form part of any religious belief.

Comment

This was a difficult case for Dr Raabe to win. The Secretary of State’s decision to revoke his appointment could certainly be seen as a rather cowardly capitulation in the face of media pressure or as a failure to take a sufficiently robust stance in defence of freedom of speech and tolerance of unpopular or non-mainstream views. However, once Stadlen J found against Dr Raabe on the natural justice and irrelevant considerations points, it was an uphill struggle to say the decision was irrational.

Stadlen J gave pretty short shrift to the Article 9 arguments in this case, describing them as “a red herring” (para 245). However, the distinction he mentioned between a manifestation of religious belief and an act motivated by religious belief is a difficult one to draw, and it is not entirely clear following the decision in Eweida that there is such a distinction at all.

On a practical note, this saga is a salutary lesson in the great ease with which past writings, however obscure, can now be found online. It is only fair to Dr Raabe to point out that this paper was never actually published by him but was rather put out into the public domain by others. Moreover, he accepted that the language used in the paper was overly ‘strident’ or ‘harsh’, that some of the points made were controversial or could be easily misunderstood, and that if he wrote it again he would have used a more careful and conciliatory tone. Yet despite all this, these intemperate words written 6 years previously came back to bite him. The author of this blog post, for one, is certainly now being extra careful about what he publishes!

More broadly, the obvious concern about a judgment such as this is that it may have a chilling effect on the exercise of freedom of expression and freedom of belief, however fact-specific the ruling was. In particular, the Marriage (Same-Sex Couples) Bill is moving towards its Report stage in the House of Lords on 8 July, and this decision undoubtedly has wider implications for the question of whether the Bill contains sufficient protection for the freedom of speech and freedom of belief of opponents of same-sex marriage. Stadlen J was at pains to emphasise that it was not Dr Raabe’s opposition to same-sex marriage per se that was at issue, but rather the manner in which it was expressed. For example:

  • “…there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future.” (para 256)
  • “Nor is there any evidence to suggest that his appointment would have been revoked if it had emerged that he had written an opinion piece against same sex marriage in balanced terms which were not considered to be offensive to the LGBT community upon whose co-operation the work of the ACMD in part depended.” (para 257)

However, in essence the outcome of this case was that it is lawful and reasonable for the Government to revoke a public appointment on the basis that members of the LGBT community would find certain views of the appointee to be offensive.   Given that some members of the LGBT community have publicly stated that they find any opposition to same sex marriage to be ‘bigoted’ and offensive, however carefully it is expressed,  Stadlen J’s assurances that opponents of same sex marriage will not find themselves excluded from certain aspects of public life may be optimistic.

Practitioners who represent equalities groups might be interested in the suggestion made on behalf of the Secretary of State in this case that if an LGBT group had wished to challenge Dr Raabe’s appointment on the ground that the Defendant had failed to take into account a relevant consideration, namely the views expressed in the 2005 Paper which would impede the gay community’s willingness to work with him, they could have done so. This may be an argument that equalities groups decide to pursue in future and that Government departments will have to respond to in due course.

The problem is that this could encourage a more aggressive and fractured mode of public debate, where various interest groups regularly try to prevent the appointment of anyone they disagree with, or shout ‘offensive’ at any view they don’t like, rather than fostering an environment in which there can be frank exchange of different views but people are willing to work alongside even with those they strongly disagree with. An unintended consequence of a case such as this may well be increasing blandness in public appointments, out of fear that a more radical appointee may not only cause upset, but even lead to legal challenge. 

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11 thoughts on “Sacking GP from government drugs advisor post for ‘anti-gay’ views was lawful

  1. Dr Raabe put his name to a rather “dumbed down* paper, i.e. one that was intended to bring some degree of scholarship to a wider audience than just medics and academics. That paper asserted: “there are a disproportionately greater number of homosexuals among paedophiles and there is an overlap between the gay movement and the movement to make paedophilia acceptable”.

    As the general public uses *colloquially* the words “paedophile”, “paedophilia” and “homosexuals” (which is different from the way that scientists tend to use the words, having in mind narrow and precise definitions), both propositions are undoubtedly true, and are strongly evidenced-based. But, they are truths that the authors of the paper were publicising for political reasons at the time, and which it is politically *incorrect* for anybody to publicise ever, in the view of politicians beholden to the gay lobby, which is most of them nowadays.

    Dr Raabe was awarded an honorary position, on a committee that informs the political process, which had been in the gift of a politician, who was probably well aware of Dr Raabe’s politics, churchmanship, research interests and morality. Probably Dr Raabe was appointed in order to enhance the diversity of the committee.

    The said politician promptly confiscated that gift, when others lobbied him *politically*, to do so. The judicial review of a politician’s politically correct, perhaps cowardly, *political* decision, under pressure from the gay lobby, to confiscate an honorary position on a political committee was always likely to fail.

    I would guess (though I am not a lawyer) that if Dr Raabe had instead been able to claim unfair dismissal on the same facts, the tribunal case would have been a great deal more interesting, and might well have gone his way.

    What this case *doesn’t* prove, is that Dr Raabe did anything wrong. The judgment is clear, the politician giveth and the politician taketh away. A political decision to sack somebody from a post like this doesn’t have to right or fair, nor does the manner in which the decision is marketed as the victim’s own fault, in order for the sacking to fail the test for irrationality.

    John Allman
    “The homophobic manifesto”
    JohnAllmanUK.Wordpress.com

  2. If George Orwell were alive he would be shocked that the “Thought Police” were so active. Very soon people will be employed to go through all past editions of newspapers to alter anything that does not fit in to our new tolerant society.

  3. John Allman’s assertion that “both propositions are probably true” is not borne out by the studies which rely on facts and figures. It is, quite frankly, based on a myth, a highly offensive, long-standing slur against the gay community and one which I must object to immediately. Readers can find some of the facts here: http://psychology.ucdavis.edu/rainbow/html/facts_molestation.html where the conclusion reads as follows: “The empirical research does not show that gay or bisexual men are any more likely than heterosexual men to molest children. This is not to argue that homosexual and bisexual men never molest children. But there is no scientific basis for asserting that they are more likely than heterosexual men to do so. And, as explained above, many child molesters cannot be characterized as having an adult sexual orientation at all; they are fixated on children.”

    • @ Dara Keenan

      I am male. I lost count of the number of adult males and older boys who showed inappropriate sexual interest in my body between the ages of 10 and 17. There were precisely zero adult women, or older girls, during the same period, who showed such interest. Almost every man who was sexually abused during childhood or adolescence has a similar story. Almost all the intergenerational sexual abuse boys experience is male-on-male.

      Polemics from the homosexual lobby pleading for the reduction or outright abolition of ages of consent are also commonplace. See, for example,

      http://www.christianvoice.org.uk/index.php/peter-tatchell-and-the-paedophile-book/

      Please don’t forget, I prefaced my comment with the proviso: “As the general public uses *colloquially* the words ‘paedophile’, ‘paedophilia’ and “homosexuals’ (which is different from the way that scientists tend to use the words, having in mind narrow and precise definitions), …”

      If one defines “homosexuality”, not as male-on-male or female-on-female sexual *activity*, but as a mystical “orientation”, and defines the “homosexual” orientation in such a narrow manner as to exclude those with same sex sexual interests that are inter-generational, then what one discovers is that, using such rigged definitions, there is no correlation between same sex attraction and inter-generational attraction. That’s what UC Davis has done. This is like defining an “elephant” as an exclusively *outdoor* mammal, and then denying the presence of the proverbial “elephant in the room”, because (one insists) the minute the elephant goes indoors, it ceases to meet the scientific definition of an elephant that one has chosen.

  4. ” there is an overlap between the gay movement and the movement to make paedophilia acceptable”.
    This proposition does hold some weight. The GLF spawned the paedophile offshoot PAL. And the Scottish Minorities Group had PIE as a special interest offshoot. So politically and ideologically, unfortunately their is indeed an overlap between the gay rights movement and the attempt to legalise paedophilia.

  5. I don’t think people realise how scandalous this case is. Consider the following:

    The issue of ‘freedom of speech’ concerns whether untrue or hurtful things can be uttered. HC Raabe was doing neither. He was not merely citing (accurately) scientific papers. He was not even merely citing a scientific consensus. He was citing a *strong* scientific consensus. And people ask whether he should have had the freedom to do that? This is a massive, quasi-Communist degree of censorship, when the findings -even the consensuses- of the scientific community are treated as ‘eccentric’ and ‘illiberal’ – things that should not be uttered without suffering a penalty. What is never asked is whether the findings are accurate and true or not – which is surely the most central matter.

    What people never seem to do is cite any papers (and they’d need to cite quite a few papers, all of which gave a starkly different picture, in order to redress the balance) which disagree with the following consensus. So non-researchers who have done not the slightest spadework can dictate to painstaking researchers that scientific findings MUST be politically correct? How are scientists supposed to help what conclusions they come to? That is the whole point of science. It is disinterested, objective, neutral enquiry.

    K Freund et al.:Journal of Sex and Marital Therapy 1984: 193-200: Around 80% of paedophilia victims are boys molested by adult males; 35% of paedophiles are homosexual. [This, like the other findings below, is very disproportionate, since only 1.5-6% of people are homosexual.] Supported by R Blanchard et al.:Archives of Sexual Behavior 2000:463-78.

    JMW Bradford et al.:Psychiatric Journal of the University of Ottawa 1988: 217-26: 20-33% of child sex abuse is homosexual with 10% mixed.Cited favourably by the Home Office: D Grubin, ‘Sex Offending against Children: Understanding the Facts’ (Police Research Series Paper 99: Home Office 1998) p14, para2.

    W D Erickson et al.: Archives of Sexual Behavior 1988: Based on self-reports, 86% of molesters identified as homo- or bisexual.

    K Freund & RI Watson: Journal of Sex and Marital Therapy 1992: 34-43: On average homosexual paedophiles molest 7-8 times as many children as heterosexual paedophiles.

    EO Laumann et al.: The Social Organisation of Sexuality (University of Chicago Press 1994): 21% of instances of preteen-adult sexual bonding are same-sex.

    (P Cameron: Psychological Reports 1986: 327-37 and The Gay Nineties [Adroit Press 1993] independently verified the same one-fifth to one-third consensus. Questions have been raised about some of his other work – but here his findings are squarely in the mainstream.)

    JR Hughes: Clinical Pediatrics 2007: Reviews all 554 paedophilia papers on Medline and concludes that it is impossible to view homosexuality and paedophilia as completely unrelated.

  6. Dara Keenan refers to an online article by Dr Herek on his website.
    http://psychology.ucdavis.edu/rainbow/html/facts_molestation.html

    Please note that this is not a peer-reviewed article. This is actually quite poor science as it seems to dismiss every publication (claiming methodological problems) that shows a link between homosexuality and paedophilia. Not surprisingly, Herek fails to acknowledge methodological problems in studies that support his views. Note that Herek is not really a specialist on this area, indeed his main area of interest is ‘prejudice against lesbians and gay men’, which probably contributes to him dismissing all evidence that does not suit him.

    Much more balanced than the above is the comprehensive and peer-reviewed review by Hughes who in 2007 reviewed all 554 (!) papers listed on Medline which had been published on paedophilia. (Link http://www.uni-due.de/imperia/md/content/rke-forensik/material/hughes2007reviewofmedicalreportsonpedophilia.pdf )

    Hughes gives quite a detailed review of the history starting from the ancient Greeks to include for example contemporary Holland (quote: ‘The goal was to broaden the idea of gay identity to include and accept pedophilia…’).
    He then reviews evidence for and against a possible relationship between homosexuality and paedophilia Hughes writes:
    ‘The main evidence in favor of a relationship between pedophilia and homosexuality is the common cause of fraternal birth order and postnatal learning. (…) It seems to be questionable logic to view these 2 conditions as completely unrelated.’

    (Further analysis can be found http://pjsaunders.blogspot.co.uk/2011/02/in-sacking-dr-raabe-home-office-has.html )

    So perhaps things are not quite as simple as Keenan seems to think…

  7. The use of psuedoscience here does not support the contention that paedophilia is more common amongst homosexuals. Indeed Paul Cameron’s research (& the selective reporting of peer reviewed research to appear to show data that the authors do not actually show) is highly selective and has been discredited by criminologists & scientists working in this field. Nevertheless the use of these psuedodata and others is frequently used by so-called Christians seeking to promote their anti-homosexual agenda. In the 1920s similar psuedoscience was used to assert that both Jewish & black men were more likely to commit crimes & sexual offences, using spurious data and for the latter the fact that black men are more likely to be convicted for sexual and other crimes that white men because of biases within the criminal justice process including access to a good solicitor.
    Most convicted paedophiles in UK prisons identify as and were, prior to conviction, regular churchgoers, as both research by the Church of England & Home Office data have shown. This does not mean that amongst the small percentage of regular churchgoers paedophilia is more prevalent. It simply means that paedophiles look for the easier ways to access children to abuse.
    Paedophilia is a paraphilia that in the majority of cases (certainly in the UK) is gender neutral. Most paedophiles are attracted by children of both sexes, but are opportunistic and abuse those they have greatest access to. To characterise paedophilia as a mainly homosexual trait is false and allows many men who abuse girls to get away with it. Conviction rates are notoriously low for abuse that occurs within the heterosexual family – where most sexual abuse of children arises. Historically most sexual abuse known about has been by males who are sexually attracted to adult females AND children. Paedophiles may be mainly attracted to children OR be attracted to both adults AND children.
    The perpetuation of the myth that most homosexual men were sexually abused as boys must also be challenged. This myth aids paedophiles as it makes victims less likely to report abuse as they legitimately fear being labelled as homosexual.
    As an aside I should also like to point out that Dr Raabe’s political opinions about homosexual practice differ from those of many devout Christians in this country. The main destroyer of family life in this country & the US is not homosexual practice or civil unions but divorce and family breakdown caused by unexpectedly idealistic expectations of what marriage entails, long anti-social working hours by both parents who must now work to make ends-meet and money worries. I suspect because the majority favour the legalisation of divorce it is deemed politically correct by some conservative Christians NOT to address this issue but blame and demonise homosexuals – a minority historically persecuted by “Christians”. However Jesus specifically condemned divorcees – a point rarely made – as adulterers. The Bible condemns adultery more frequently & more forcefully than it even mentions homosexuality.

    • Hi Steve

      We seem to be straying from the subject.

      You mention, “the myth that most homosexual men were sexually abused as boys must also be challenged”. Is that actually a “myth” that Dr Raab wrote about back in 2005 then? If so, is the politician’s sacking of this medical scientist, when some of his his colleagues refused to work with somebody who had mentioned that myth some years earlier, is an example of what you mean by the “challenging” a “myth” that you think “must” be challenged?

      Is it also a “myth” that most sexual abuse of boys is male-on-male?

      Did you agree with the following analysis, from the blog post itself?

      “… in essence the outcome of this case was that it is lawful and reasonable for the Government to revoke a public appointment on the basis that members of the LGBT community would find certain views of the appointee to be offensive. Given that some members of the LGBT community have publicly stated that they find any opposition to same sex marriage to be ‘bigoted’ and offensive, however carefully it is expressed, Stadlen J’s assurances that opponents of same sex marriage will not find themselves excluded from certain aspects of public life may be optimistic.”

      John
      JohnAllmanUK.Wordpress.com

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