Friday, 25 July 2014

Do Church of England 'gay bishops' have a human right not to be 'outed'?

Peter Tatchell has recently stated on Twitter that he is 'considering outing gay [Church of England] bishops who discipline gay clergy who marry'. 

This is a response to the House of Bishops' Pastoral Guidance on Same-Sex Marriage, issued on 15 February 2014, which states:

The House is not [...] willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

In a conversation with Kelvin Holdsworth, Provost of St. Mary's Cathedral Glasgow, Tatchell discussed outing 'gay bishops' as a response to the hypocrisy of their actions in preventing other gay clergy from entering into marriage. 

This subject will no doubt be discussed in detail by those learned folk over at Thinking Anglicans and Law and Religion, but one aspect that caught my attention was Tatchell's interpretation of the bishops' 'right to privacy':

Peter Tatchell: [...] we are amassing the evidence right now. I’m not saying that we will use it, but we are certainly thinking about it – because people have a right to privacy so long as they are not using their own power and authority to harm other people and when other people are being caused harm and suffering we have a duty to try and stop it. If this is the only way, it is certainly not the preferable way, it’s not the first option but as a last resort I think it is morally and ethically justifiable.

This made me think: how would Tatchell's interpretation of the 'right to privacy' stand up in the context of ECHR jurisprudence?

Could Article 8 protect Bishops from the practice of 'outing'?

A Church of England bishop, like every other person in a Council of Europe state, has a right to respect for his private life. This is guaranteed by Article 8 of the European Convention on Human Rights. 

The exercise of the right to respect for private life can only be interfered with by a public authority when it is in accordance with the law and is necessary in a democratic society to meet one or more of a number of legitimate aims.

Peter Tatchell is not a 'public authority' and, as such, his actions cannot in themselves violate the bishops' right to respect for private life. 

However, the European Court of Human Rights has long held that contracting states have a positive obligation to ensure that an individual's right to respect for private life is not violated by another individual:

The Court recalls that although the object of Article 8 [...] is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life [...]. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (X. and Y. v The Netherlands, 1985, § 23).

It would be perfectly possible, therefore, for a Church of England bishop to complain, in the event of a perceived failure by public authorities to protect his right to respect for private life, that the United Kingdom had not met its positive obligations under Article 8 and, as a result, violated the Convention.

Could an Article 8 complaint from a bishop succeed?

The legal principles 

The Court has long held that the boundary between a State’s positive and negative obligations under Article 8 does not lend itself to precise definition but that the applicable principles are similar: in both contexts regard must be had to the fair balance that has to be struck between 'relevant competing interests' (see: Von Hannover v Germany (No. 2), 2012, § 99).

The relevant competing interests in this case would be a bishop's right to respect for his private life under Article 8, and Peter Tatchell's right to freedom of expression under Article 10.

On the one hand, it is well established that Article 8 protects the 'intimate and vulnerable sphere' of sexual orientation (Kozak v Poland, 2010, § 92).

On the other hand, the Court has long regarded Article 10 to protect freedom of expression as one of the essential foundations of a democratic society and to be applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The Court has said that these are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society' (see: Handyside v the United Kingdom, 1976, § 49).

In addition to this, when adjudicating the fair balance to be struck between these competing rights, the Court has long regarded 'the press' to have a significant and privileged role in democratic societies because it acts as a 'public watchdog' (see: Axel Springer AG v Germany, 2012, § 79).

Peter Tatchell (or the Peter Tatchell Foundation) might not be said to be 'the press', but they could claim to have 'journalistic freedom' to write about and publish on a subject that addresses a pressing social need in a democratic society.

As such, Tatchell could claim a heightened right to freedom of expression under Article 10 and that any interference with it would be a violation of the Convention.

Therefore, any complaint by a Church of England bishop about an interference with his Article 8 rights would be considered in the context of Tatchell's right to freedom of expression under Article 10. 

The Court has recently set out (in Von Hannover v Germany (No. 2), 2012) the relevant principles to be applied in cases where it is required to verify whether domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other such as, in this case, on the one hand, freedom of expression protected by Article 10 and, on the other hand, the right to respect for private life enshrined in Article 8.

In this respect, the Court has identified a number of criteria as relevant where the right of freedom of expression is being balanced against the right to respect for private life, which are:

  • (i) contribution to a debate of general interest
  • (ii) how well known is the person concerned and what is the subject of the report?
  • (iii) prior conduct of the person concerned
  • (iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken
  • (v) content, form and consequences of the publication

Applying the legal principles

Of particular interest to the bishops/Tatchell question is the application of the Court's principles/criteria in Küchl v Austria (2012) which was one of two cases in which the principal and deputy principal of St Pölten seminary (Austria) - where future Roman Catholic priests are trained - complained about insufficient protection from the Austrian courts following the publication in a weekly news magazine, Profil, of an article that stated that they had engaged in same-sex sexual relations with seminarians (and also published photographs purporting to be evidence of this). 

The applicant, Mr. Küchl, complained that the Austrian courts’ refusal to award him compensation in respect of the publication of the article and photograph violated his right to respect for his private life as guaranteed by Article 8.

Applying the principles outlined above, the Court rejected Mr. Küchl's complaint. In doing so, it made the following observations, which are pertinent to the bishops/Tatchell question:

  • The Court endorsed the Austrian Court of Appeal's decision that '[i]n view of the Church’s position condemning homosexuality, the public had a right to be informed about the conduct of a dignitary of the Church which was in open contradiction with that position' (§ 70).
  • According to the established case law of the Court, a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. A fundamental distinction is made between reporting facts capable of contributing to a debate in a democratic society, relating to those who exercise official functions, and reporting details of the private life of an individual who does not exercise such functions. The Court accepted that, in these circumstances, the identification of Mr. Küchl prevailed over his interest in protecting his private life (§ 75-79).

In sum, the Court rejected Mr. Küchl's complaint that the state had failed to uphold its positive obligations under Article 8 and therefore concluded that there had been no violation of the Convention.

However, Mr. Küchl had been successful in taking action in the Austrian courts to suppress the distribution of the photograph alleged to evidence his involvement in homosexual acts. The publisher of the photograph complained to the European Court of Human Rights that an injunction prohibiting them from further publishing Mr Küchl’s picture in the context of specific statements about his alleged homosexual acts had violated their right to impart information as guaranteed by Article 10 of the Convention. The Court rejected this complaint (Verlagsgruppe News GmbH and Bobi v. Austria, 2012).

Conclusion

From the Court's existing case law it would appear that any complaint to the Court from a Church of England bishop about any failure of the UK to fulfil its positive obligations under Article 8 to prevent discussion of his private life would likely be unsuccessful. 

This is because such a discussion would likely be judged to involve a public figure and to be an issue of general debate to which the public had a right to be informed. In short, it would be regarded as necessary in a democratic society to 'override' the rights of the individual subject to discussion. 

A caveat to this might be that the public discussion of a Church of England bishop's 'sexual orientation' might be regarded as insufficiently relevant to the issue of same-sex marriage (it not being 'hypocritical', some might argue, to have a homosexual sexual orientation and/or live in a same-sex relationship whilst being opposed to same-sex marriage) and therefore not necessary in a democratic society. 

The use of photographic 'evidence' would certainly raise separate issues and any regulation of it by UK authorities may not be judged to violate Article 10. 

Overall, aside from its moral or ethical legitimacy, Peter Tatchell's 'outing' of 'gay bishops' may be on safe legal grounds in respect of any complaint to the Court by an 'outed' bishop under Article 8 of the Convention. 




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