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Yesterday’s Appeal Court ruling strikes me as a serious blow to religious freedom

If the judgment is upheld, canon law is to be replaced by employment law

By on Friday, 13 July 2012

The Royal Courts of Justice, home to the Court of Appeal (Photo: PA)

The Royal Courts of Justice, home to the Court of Appeal (Photo: PA)

The decision of the Court of Appeal in the case concerning the Diocese of Portsmouth, which has been reported in the Catholic Herald but not received any attention that I have noticed elsewhere, is extremely interesting.

The court has upheld the ruling that the diocese is liable for the action of one of its priests, on the grounds that the relationship between priest and bishop is close enough to employer/employee for this to be the case.

Now this seems to be a case mainly about compensation for the victims of child abuse, and so it is. I would like to leave that part of it aside, and consider something that may be overlooked, but may be of great importance both for the Church and for all other voluntary organisations.

Until now, as far as I understand it, priests volunteer to serve in various offices at the invitation of the bishop or religious superior. If the bishop and the priest are now to be considered in an employer/employee relationship, then this represents an innovation. Employees can sue their employers, and vice versa; the relationship between employees and employers is governed by a vast corpus of case and statute law. At present the relationship between bishop and priest is governed by canon law, the only force of which is in the will of those who adhere to it. A priest can, but rarely does, initiate a canonical process against his bishop, and vice versa; but if we are employees, then this opens up a whole new range of possibilities, and potentially, a considerable new territory for litigation.

Then there is another matter. The Church is a voluntary organisation that makes its own rules, just like the Scouts or any other bunch of do-gooders. This court ruling, if it is upheld, would effectively mean that from now on the Church’s own rules were no longer in force in governing the relationships between priests and bishops; and canon law would be replaced by the law of the land in this regard. In other words, it would mean the intrusion of the state into the Church and an usurpation of freedom of conscience.

Let me give you an example. If you are Jewish, and you have doubts about whether something is kosher or not, you may ask for a ruling from your local Beth Din, which is a rabbinical court. And the Beth Din may hand down a ruling which you, as a pious Jew, will find binding in your conscience. But let us say that the state decided that what was kosher and what was not was a matter for the Trades’ Descriptions Act, and decided that from now on the Beth Din’s rulings could be overruled by a secular court? You would be outraged, would you not? Funnily enough something like this has already happened. You may remember the case some time ago when a court effectively ruled who was Jewish and who was not.

That decision struck me as farcical. It is for Jews and the authorities they recognise and no one else to say who is and who is not Jewish. This seems to me to be a basic human right, part of the essential right to freedom of association. Now too, if this ruling stands, we too may be faced with the spectacle of secular courts ruling on religious matters. Let us say a bishop does not like the way Fr Bloggs preaches and says Mass; Fr Bloggs is dismissed from his post, and takes the bishop to an employment tribunal claiming unfair dismissal. That tribunal then has to consider whether Fr Bloggs’s sermons were or were not offensive to pious ears, whether he observed the rubrics or not, and so on. This prospect is not just farcical, it is sinister.

I am not a canonist or a lawyer, so I may be wrong about this. But this ruling strikes me as a very serious potential blow to religious freedom.

  • Bob Hayes

    This ruling – if it stands – seems to open the way to numerous challenges to the very essence of priesthood, the Church and religious freedom. If the priesthood is gradually drawn into the status of ‘job’, the influence of the Holy Spirit is in danger of being usurped by the personnel manager and the lawyer. A quite frightening prospect!

  • Jonathan West

    The Church is a voluntary organisation that makes its own rules, just like the Scouts or any other bunch of do-gooders. This court ruling, if it is upheld, would effectively mean that from now on the Church’s own rules were no longer in force in governing the relationships between priests and bishops; and canon law would be replaced by the law of the land in this regard. In other words, it would mean the intrusion of the state into the Church and an usurpation of freedom of conscience.It’s nothing of the sort. It’s a simple application of the “duck rule”. If it looks like a duck and quacks like a duck, then it is a duck. If the relationship between a priest and a church looks like an employment relationship – i.e. the organisation asks a person to perform certain duties over a period of time and gives him money in exchange, then this is employment and the relevant laws apply even if the parties call it something else.

    That decision struck me as farcical. It is for Jews and the authorities they recognise and no one else to say who is and who is not Jewish. 
    Strange. Just today William Oddie is claiming that if the Anglo-Catholics remain in the CofE after a decision to permit women priests, they will have forfeited the right to call themselves Anglo-Catholic. It seems that this idea of people being able to call themselves whatever they want is very selectively applied.

  • Alexander Lucie-Smith

    I agree with Dr Oddie: it is for us Catholics to decide who is Catholic and who not. God forbid that that should ever be the job of some lawyers.

  • Oconnord

    “Until now, as far as I understand it, priests volunteer to serve in various offices at the invitation of the bishop or religious superior.”
    In last year’s ruling  Mr Justice Macduff said in his ruling…

     “He [Baldwin] was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as a representative of the church. He had been trained and ordained for the purpose. He had immense power handed to him by the defendants [the trustees of the Roman Catholic diocesan trust]. It was they who appointed him to the position of trust, which (if the allegations be proved) he so abused.”

    And this week Lord Justice Davis said ….

    “It may be that the bishop had no ‘formal legal responsibility’ for Father Baldwin, but in my view his responsibility for, and control over, the parish priest whom he had appointed was real and substantial. I would … attach importance to the fact that Father Baldwin had been appointed by his bishop as parish priest: that is not simply to be equated with his status as ordained priest.”

    So even if the priest “volunteers at the invitation of the bishop” the relationship is still akin to employee and employer, the bishop granting the priest authority and retaining control and responsibility of his actions.

  • Jonathan West

    Likewise, the Anglo-Catholics have the right to decide who they call Anglo-Catholics.

  • John Shuster

    This priest is upset because his church can no longer be free to do as it wants with impunity. That’s not freedom, that’s predatory license, and it has only resulted in shredding the lives of hundreds of thousands of children and vulnerable adults around the world. Survivors and their families are now free to pursue justice, healing, and reconstructive compensation in the UK justice system against a powerful multi-national church corporation.

  • Gavin Wheeler

     “it is for us Catholics to decide who is Catholic”

    Doesn’t that rather assume that we all agree on who is ‘Catholic’… which is the whole point of dissent here.

    It is more a question of whether one group who call themselves “Catholic” can prevent another groups from doing likewise.

  • Fr Laurence Roberts

    The Church must take responsibility for its actions. That is what the court is saying. The RC Church’s attitude to those abused by its priests is frankly immoral.

  • Lee

    The priest is dead you mug, have some respect! Also, some of the legal reasoning benoted by some of The Law Lords was as vague as what it means to be a ‘secular catholic’, especially Lord Baldwin’s ratio !

  • Tony

    But if the ‘duck’ can talk, and he says he’s not a duck, but a swan, who are we to disagree?

  • Apostle of the Lord

    When, Oh when are the hierarchy of the church going to admit not only responsibility but liability for the actions of priests who have abused children. Not only should they admit wrongdoing by their priests but they should apologise profusely for the wrongdoing. They are good at telling others to apologise but will they do likewise ? NO. This case in particular has seen a young woman dragged through hell, having to re-live what happened to her, do the ‘caring’ shepherds of the church give a damn about that ? NO THEY DON’T. Let me tell you something, the currency in the church is ‘power’ and we all know that power corrupts. Well, now some power has been taken away by the civil courts, good ! 
    I shed tears when I think about children being abused by the clergy but my tears are as nothing compared to the tears of those innocent victims. The Church that Our Lord founded has become a ‘monster’ and, believe me, I do not say that lightly, sadly it is the truth.

  • Nesbyth

    “Hundreds of thousands of children and vulnerable adults around the world…”
    Where have you got these statistics?
    They are a gross exaggeration, just chucked into your argument, which weakens it.
    Of course this whole thing is a scandal and a blot on the Church, but let’s get the facts

  • Parasum

    Dead predators deserve curses, not respect. They certainly don’t deserve Christian burial – he should be exhumed, the body burned, and the ashes flushed down a sewer. That he was a priest makes his crime far worse than if he were a layman, and – were it possible – even more inexcusable. Those who enable such men are worse.

  • Parasum

    “Now too, if this ruling stands, we too may be faced with the spectacle of secular courts ruling on religious matters.”

    ## And that is wrong because…?

  • Mjmorani

    Perhaps now they will take note at the sexual abuse in the Polish Church and stop ignoring it as something single men will do.

  • Paulahagan

    You have obviously chosen to ignore that Pope Benedict XVI has not only stated his unequivical abhorrence of clerical sexual abuse but also sat and wept with the victims. Pope Benedict has worked tirelessly to rid the Church of the [quote] “filth”[unquote] and will persist in doing so e.g.many changes have been implemented in priestly formation. IIf you want to be a true apostle of the Lord I suggest you start by not insulting those whom He has chosen to lead His Church. I too am appalled and feel heartsick even trying to imagine how the abused victims must feel but mercy and forgiveness are far more valuable to a soul than hatred. Perpetrators of clerical sexual abuse are to blame for their own actions not the Church. Please do not generalise as if every priest and bishop were of the same ilk as the abusers…THEY MOST CERTAINLY ARE NOT.

  • Nat_ons

    Not quite; responsibility is not merely a legal rule but a moral constraint .. the constraint exists whether or not the human law imposes any liability or blame. The nearest saecular form that I can see in modern England is the concept of Regina (as opposed to HM Queen Elizabeth II, the person). Her Majesty’s office holders – like her one time Lord Chancellor or current Prime Minister and Archbishop of Canterbury et al – are not employees for whose deeds in her service she must be held accountable .. but faithful appointees (on whom she depends, in good faith of their good behaviour .. they are accountable for their good behaviour and good faith).

    Note well, Her Majesty may be held accountable for her ministers public official misdeeds – and any cover-up and mishandling of these – but not for their private sexual misdeeds. A Bishop stands in relation to his priest with sovereign majesty to the good faith service of an appointee, not employer to employee. Either way, the bishop is accountable for his own mishandling of bad faith even in regard to private sexual misdeeds of an appointee – but not the appointee’s bad faith.

    This ruling must frighten all charities who have volunteer appointees as agents, but ought to concern the Chancellor of the Exchequer more .. if Regina is to be held to account for the private sexual misdeeds of her ministers.

  • Apostle of the Lord

    Please listen to me sir. As one who has been involved as an advocate for victims of abuse I can tell you that not only have those in authority failed dismally to rectify this abhorant situation but they have put their credibility ( such as it is ) before ANY compassion or justice for victims. Now I suggest to you that you go and tell the real people that matter here, the victims of abuse, what you say in your reply above, I can guess the response you will receive. Please don’t be so sanctimonious in your presumption that the good Lord has actually chosen these people to lead his Church, Sadly in the church today the Holy Spirit seems to be ignored and it is more a case of jobs for the boys !

  • Bonaventure

    If a priest were found guilty of misusing his office in order to defraud someone financially, would his bishop be liable to pay compensation? I think not. So why should a bishop be liable for the priest’s sexual misdeeds?

  • Jonathan West

    Go by the evidence. If it actually turns into a swan, then you can call it a swan.

  • Jonathan West

    You can decide who is Catholic or not, but you can’t decide to evade employment law. That applies to everybody. And you can’t evade the laws on child protection. They apply to everybody as well. 

    Just remember why it is this case went to the Appeal Court in the first place.

  • Veronica

    Father Lucie Smith is wrong about the decision not being reported elsewhere. It was reported in Daniel Barnet’s employment law website It is reported in the Times today

    It is reported in the Australian Catholic press and the English press.

    It was reported when the case was in the high court in November 2011.…/…/…/…/ › News › World news › Catholicism

    and of course it is reported in the catholic press.

    It comes to this really. The catholic church has failed to acknowledge that UK law takes precedence over canon law when it comes to the crimes and actionable misdemeanours of its priests. It frustrated Henry II and it frustrates me. 

    A penitent catholic church would pay the claims of those who have suffered without making them go through the abuse experience all over again in a negligence action. A penitent Pope would appear in sack cloth and ashes; would empty its bank vaults to pay for the necessary psychological treatment and support of its victims. 

    Father Lucie Smith states that religious freedom is being attacked. It reminds me to ask what it is. It means that people are permitted to worship God, which they are. Is it necessary for the worship of God that the RC church maintains the fabric of its chalices, garments, alters and religious monuments? Of course not. But you cannot worship God freely in any church where priests with criminal tendencies are shielded from prosecution by the spiritual authorities. 

    I cannot hide my admiration for the leading judgment given by Ward LJ for he openly acknowledged his human feelings… before going on to brilliantly demonstrate why his judgment on the law was correct. I do not fear the implications of this decision since it is so special on its own tragic facts.

  • Laurence England

    Employer, employee relationship?

    As far as I knew the vast majority of Diocesan priests get wages just twice a year. Christmas and Easter, from the people in the pew.

    Time for a pay rise?

  • Laurence England

     What about a Priest trade union?

  • daclamat

    I’m 74. Abuse happened between ’47 and ’52. Lucie-Smith doesn’t know what he’s talking about. I do.
    Bishops, in the name of “principle” can keep the pot on the burner for decades, as we run out of time.  Bishops spend vast sums that don’t belong to them, knowing that victims are probably pensioners. I’m celebrating 12 months coming out of a coma, stress symptom, life-threatening, and am scarcely fit to engage in episcopal kung-fu.  Anyway Bishop Roche, soon to be arch, doesn’t deign to reply to my emails. Lucie-Smith obviously has a nice little earner.  A curate is sent to a parish  -which he doesn’t choose. LIves off simony – so called mass stipends, and twice yearly collections. He can and will be moved at his bishop’s whim. This is being self-employed!  I think the hierarchies are being frankly evil, but the people they crush can’t take them on!

  • Apostle of the Lord

    Well said Veronica. I’ll tell you something else; Father Lucie Smith sounds as though he is all wrapped up in cotten wool ( like others here who have posted ) and fails to see the reality of this situation. Those bishops and others in authority in the church who have protected predator priests and have lied and swept much under the carpet ( and believe me they have ) are complicit in these crimes against children. Are we to cow tow to such people, I don’t think so, They call themselves eminence when there is nothing eminent about them, they call themselves ‘your grace’, there is nothing graceful about them. PLEASE !! 

  • daclamat

    Baldwin died in 2006. The lady, 48 yrs old, was abused in the ’70s. Plenty of time to get the matter sorted, except that the diocese, taking a stand on principle, has deep pockets and can go on appealing until the abused dies.  Given the nature of abuse and its consequences, the abused are probably in no fit state to fight their cases. Incidentally, the church in Belgium accepts liability, and a non-ecclesiastical commissioin has been set up to adjudicate. Intemperate insulting language doesn’t improve your argument. Good job John Terry doesn’t blog in the CH.

  • Alan Collins

    This is no innovation. The Court is applying the law as I understood it to be. The Catholic church in the same was as other faiths and organisations has to accept responsiblity for those that it holds out as exercising duties on its behalf.

  • Speransgaudebo

    Could you make your username a little more pretentious? I can’t help feeling you’re underselling yourself.

  • 4045

    The article fails to recognise that in a number of past cases of this general type (for instance, Maga)
    it was the relevant bishop or archbishop of the Roman Catholic diocese in
    question who agreed, for the purpose of the case in question, that the
    priest should be regarded as an employee.

  • Veronica

    Yes though the important result of the decision of the court of appeal is that the element of choice is now removed. 

  • 4045

      Commenting on the outcome at first instance this is what the New law Journal had to say in March of this year.

    “Where a claim is brought against a defendant, consideration should
    be given not only to the likelihood of success, as compared to the value
    of the damages and costs the case exposes the client to, but also to
    the media coverage of the case, the reduction of the party’s goodwill if
    the issue is fought, and the cost of re-establishing that goodwill.
    Sometimes, it will be more commercially prudent to settle a claim
    brought against a client, even where a strong defence is present, if the
    damage to the goodwill by running the defence, and the cost to rectify
    it outweighs the settlement.

    With commercial concerns a value may be ascribed to the goodwill.
    Now the Roman Catholic Church is not a traditional commercial concern,
    far from it. Its goodwill is not a financial commodity. But, the
    goodwill still has a value, a spiritual one. The same is the case with
    other religious organisations. Litigation decisions need to take into
    account the risk and the consequences of reputation damage, not just
    litigation costs. Where a litigation strategy detracts from the primary
    purpose of an organisation, something has gone wrong.”

  • Apostle of the Lord

    I guess from your catty comment that you are more annoyed with the content of my posts than my username. Individuals like you do not surprise anyone with catty comments like that. Grow up and get a life !!

  • Patrickhowes

    But The authoriies of The Church have brought this situation upon themselves!Canon law allowed it to act against abusive priests as it does against the heretics amongst its rank and file.John Paul ll hammered the liberation theologists.Yet what about the scandals of Maciel and Karadima in Chile.The abuses were massive;Sexual,financial and theological.For over 50 years,the victims wrote letter after letter and never got a reply.It is all about accountability!The Church and its poor system of justice has revealed mass incompetence,no proper reporting systems and channels.Not to mention institutional cover ups.People´s patience ran out.Bishops yield too much power and too little accountability.That which is Caesars,Caesar and that which is Gods,God´s.Criminal activity is not allowed under civil law and is certainly not allowed under Canon law.So why was it allowed to fester for so long?Why have we not received an investigation about Maciel and his henchmen and the massive cover up that took place.Maciel was never put in the Vatican jail yet his butler leaks a few letters and is made an example of!By their fruits you shall know them!

  • Michael H.

    Patrick, they want the power but they don’t accept the responsibility or accountability that goes with it. Maciel is a perfect example of the sheer evil, and cover up of evil,  that was rampant in the church. J.P.2 knew about it, so did the present man and many others who said nothing and let innocent victims suffer. Why did they say nothing ? because of the church’s so called credibility ! Go to youtube and look up Ratzinger slaps reporter and decide for yourself who knew what about Maciel.

  • Alan

    Religious freedom is your right to worship your faith as you see fit, it is not a right to ignore the laws of the land.  Would you really demand that a religion committing human sacrifice should be allowed to do so and the law of the land do nothing?