We posted last weekon issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.
MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)
This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.
The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”
The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.
Let’s consider the argument. The Church puts a number of propositions. First,
It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. THE UNITED KINGDOM, ECtHR, 4 March 2014– read judgment
An apparently dry dispute about business rates on one of the Mormons’ temples in Preston (see pic) has reached Strasbourg and raises interesting issues about indirect discrimination on religious grounds. The underlying question was whether the temple was a place of “public religious worship” and therefore exempt from rates.
There are over 12 million Mormons in the world, with 180,000 in the United Kingdom and Ireland. Their organisation is important for this application. Local congregations are called wards, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a “stake”. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.
Preston is one of two temples in the UK. Mormons regard these temples as the holiest places on earth – top of the religious hierarchy. But the question was – is worship there “public”?
R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages  UKSC 77 On appeal from  EWHC 3635 – read judgment
The Supreme Court has ruled, unanimously, that a Scientologist chapel is “a place of meeting for religious worship” for the purposes of section 2 of the Places of Worship Registration Act 1855, and therefore it may be licensed for the solemnisation of marriage
This was an appeal from a ruling by Ouseley J (  EWHC 3635) that a church of the Church of Scientology could not be recordable as a “place of meeting for religious worship”.
The following summary is taken from the Supreme Court’s press release. A full analysis of the case will follow shortly. Continue reading →
The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.
This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan – see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts. Continue reading →
Sindacutul ‘Pastorul Cel Bun’ v. Romania  ECHR 646 – read judgment here.
The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).
The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.
Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered. Continue reading →
The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.
In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:
‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’
Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.
At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.
What exactly is canon law and how does it relate to marriage?
Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.
The Prime Minister has announced his support for gay marriage in religious institutions. Having already said, memorably, that “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative”, he has now gone a step further and argued that gay couples should be able to marry on religious premises. But, he also made clear, “if there is any church or any synagogue or any mosque that doesn’t want to have a gay marriage it will not, absolutely must not, be forced to hold it“.
The announcement is important in the context of a legal debate which has been taking place since the Government signalled that marriage law reform was on its agenda: namely, whether religious institutions would be forced, as a result of equalities and human rights legislation, to carry out gay marriage ceremonies whether or not they wanted to. In June, when the Government was consulting over the “equal civil marriage” plans, Church of England sounded the alarm that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”
What is really interesting about the Prime Minister’s announcement is that the Government is now going beyond its original proposals as set out in the June consultation. At that point, the Government was careful to state that the proposals related only to civil (that is, non-religious) marriage and, indeed said:
Smith v Trafford Housing Trust  EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains  EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
“I find your lack of faith disturbing” (Darth Vader)
Digital Cinema Media (DCM), the media agency that supplies adverts to 80% of UK cinemas caused consternation last week when it announced its refusal to show a 60-second advert by the Church of England encouraging people to pray. The ad would have been guaranteed a sizable audience had it been permitted to air as planned before the upcoming Star Wars: the Force Awakens, advance ticket sales for which have broken all known records.
DCM said the decision was based on concerns that the ad risked upsetting or offending audiences and ran contrary to their policy not to show ads that in “the reasonable opinion of DCM constitute Political or Religious Advertising.”
David Cameron, Richard Dawkins, Carrie Fisher and Stephen Fry were among the chorus of voices to lambast the decision. Jim Shannon, Democratic Unionist MP put down an early day motion for debate in the House of Commons urging for “the ban be reconsidered and overturned”. The motion is currently supported by the signatures of 14 MPs. Continue reading →
Verlagsruppe News Gmbh and Bobi v Austria (Application no. 59631/09) HEJUD  ECHR 2012 (04 December 2012)
Hard on the heels of the Facebook case, here is another legal dust up over the media’s sharp interest in any story involving allegations of inappropriate sexual relations, particularly in the Catholic church.
Following a police investigation into internet downloads, the principal of a Roman Catholic seminary in Austria became the target of unwelcome interest from the tabloid press, including the second applicant, who published a series of articles and photographs alleging that Mr Küchl was engaging in homosexual relations with the seminarians. One article identified the seminarian principal, whose face was clearly identifiable from the accompanying photograph. The article was entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.” Continue reading →
Laura Profumo considers the latest human rights headlines.
In the News
The High Court in Belfast today ruled that abortion legislation in Northern Ireland is in breach of the European Convention on Human Rights. The Northern Ireland Human Rights Commission (NIHCR) brought the case to extend abortion to cases of serious foetal malformation, rape and incest.
The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In this judicial review, it was held that the grounds for abortion should be extended, though it is still to be determined whether new legislation will be required to give effect to the ruling.
On 17 February the Home Secretary announced that the government was moving ahead with changes to the Civil Partnership Act 2004 which would allow the registration of civil partnerships to take place in religious premises.
While welcomed by many, some have voiced concerns that permission will inevitably become coercion. They fear that religious organisations may face legal action if they refuse to facilitate civil partnership ceremonies, a claim the Government denies. But will they?
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