If the judgment is upheld, canon law is to be replaced by employment law
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 This court ruling, if it is upheld, would effectively mean that from now on the Church’s own rules were no longer in force in governing the relationships between priests and bishops; and canon law would be replaced by the law of the land in this regard.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.