Chaplin, Eweida, Ladele and McFarlane: Judgement of European Court of Human Rights
With four factually-different cases and two thought-provoking part-dissenting opinions, Tuesday’s judgement offered a “pick and mix” menu from which commentators could select parts appropriate to their point of view. However, the legal analyses were far less subjective and the Law and Lawyers blog of Obiter J summarized a number of the earlier reviews. Frank Cranmer’s detailed report of the ECtHR judgement, reported in Thursday’s post and cross-posted on the Cardiff Law School website, will be a valuable point of reference to those requiring an in-depth analysis of the judgement and the legislation surrounding the case.
With regard to Ms Eweida and Ms Chaplin, the court identified that the major distinction was their employer’s grounds for the uniform policy – in BA’s case it was about corporate image whereas the Royal Devon and Exeter NHS Foundation Trust had founded its policy on principles of health and safety and had followed the Department of Health guidelines on appropriate dress for clinical staff.
It was hardly supportive of Mr McFarlane’s case that he had signed up voluntarily for Relate’s postgraduate psycho-sexual counselling course in the knowledge that under the company’s Equal Opportunities Policy he would not be able to refuse clients on the ground of their sexual orientation. Ms Ladele was rather more unlucky: as the Court pointed out, as a she had been appointed as a registrar in 1992, long before the Civil Partnership Act 2004 was enacted – so from her point of view, her job changed radically in a direction that she could not reasonably have foreseen.
Frank’s analysis concluded
“what the judgment in the four conjoined cases is not about . . . . . is some kind of generalized attack on “Christian believers”; nor is it about any kind of supposed “hierarchy of rights” with Article 9 at the bottom. Rather, the majority judgment treats the four applications as individually fact-sensitive.”
Noting the Eric Pickles’ reported commitment to change UK law to support the right of people discreetly to display religious symbols in the workplace, he further commented:
“ . . . . given that the cases of Ms Eweida and Ms Chaplin were decided differently on the facts, precisely which bit of UK employment law does Mr Secretary Pickles now propose to change?”
As a footnote, it should be noted that the judgement of the court is subject to the following proviso:
“Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.“
While commentators further digest the implications of the judgement, thoughts will turn to whether appeals will be launched and how these might further influence the law in this area, and how elements of the judgement might be applied in current and future cases.
Meeting of House of Laity
Following the debate on Friday 18th January, which was described as “often fractious and angry debate”, the motion of no confidence was “overhelmingly lost” by 80-47, with 13 abstentions. No purpose appears to have been served by this meeting: the resolution of the ordination of women to the episcopate issue has not been advanced, and as we noted in December, the House of Bishops’ proposed timetable of events remains the “only show in town” capable of producing a short-term solution; and the exposure in the media, summarized in a Thinking Anglicans post, highlighted the sometimes unpleasant nature of the Synod’s debates. Andrew Brown observed,
“In most debates . . . . . both sides are convinced that God is with them and both fight as dirtily as the feel they need to do to win. The resulting spectacle is horrible.”
In a further twist to the story, the Archbishop Cranmer blog highlighted the fact that the pre-vote news items on the Channel 4 site had been written by the daughter of the proposer of the motion. Whilst this was clearly stated at the foot of the article, such a report did no one any favours. (Archbishop) Cranmer concluded by noting the absence of an objective consideration of the questions proposed in our blog on Thursday. Nevertheless, since the vote there appears to have been no shortage of posts supportive of Dr Giddings.
Scrap Metal Dealers Bill
Richard Ottaway’s Private Members Bill passed its Committee stage (i.e. a line-by-line examination) in the House of Lords on 18th January. The British Metals Recycling Association (BMRA), is anxious that the Bill is passed as quickly as possible as the ‘quick fix’ solution achieved through sections 145-147 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a loophole whereby some metal traders such as motor vehicle salvage operators are exempt. The environmental and other aspects of this Bill are covered in greater detail in Environmental Law and Management, [D N Pocklington, “The many issues associated with scrap metal theft”, (2012) 24 ELM (5)].
Of Archbishops, Lords Spiritual and Lords Temporal
The last few days have witnessed important, but relatively unnoticed aspects of Church and State ceremonial. On 10 January, the 35-strong College of Canons of Canterbury Cathedral met in the Cathedral’s 14th-century Chapter House to elect Bishop Justin Welby as the 105th Archbishop of Canterbury. The 1000 year old ceremony may only proceed once Congé d’Élire and Letter Missive from the Crown has been received, and following tradition, the candidate was not invited to attend the ceremony and only one name featured on the ballot sheet for the College of Canons to select. The Rt Revd Justin Welby is now officially Archbishop of Canterbury elect, and following a ceremony in St Pauls Cathedral on 4 February will “becomes in all powers the Archbishop of Canterbury”.
The ceremonies of the House of Lords are detailed in HoL Library Note, Ceremonial in the House of Lords, and on 15 January, the Rt Revd Dr Christopher Cocksworth, Bishop of Coventry, was introduced to the House of Lords as one of the 26 Lords Spiritual, filling the vacancy resulting from the retirement of the Bishop of Blackburn. This was followed by the introduction of Rowan Williams to the House, former Archbishop of Canterbury, as one of the Lords Temporal, having been created Baron Williams of Oystermouth, of Oystermouth in the City and County of Swansea.
Lord Williams will join former Lords Spirituals – Lord Carey of Clifton and Lord Harries of Pentregarth – who traditionally sit in the Lords as Crossbenchers (i.e. as independent, non-aligned peers). All bishops are subject to compulsory retirement bishops when they reach the age of 70, although retired Lords Spiritual are still allowed limited access to the House, to observe debates (although not sit on or speak from the Bishops’ Bench) and to use some of its facilities.
Quidquid Latine dictum sit altum videtur
From today, Pope Benedict XVI’s 2.5 million twitter followers will have the option of reading the Holy Father’s tweets in Latin, as well as English, French, Spanish, Italian, German, Polish, Arabic and Portuguese. Last year we reported that a new pontifical academy, Pontificia Academia Latinitatis, has been established to further the understanding and use of the Latin, and within Vatican City, the ATMs may be conducted in Latin, (“Inserito scidulam quaeso ut faciundum cognoscas rationem”).
With regard to the latter, however, tourists should note that the use of credit and debit cards anywhere within Vatican City is not possible at present. The Guardian reports “Deutsche Bank Italia (DBI), which has handled bank card payments on Vatican soil until now, was refused authorisation by the Bank of Italy to continue its activities due to concerns over the city state’s status concerning international banking regulations” – or as some might say, “In God We Trust – the rest pay cash”.