The Human Rights Act and female bishops

In the whole furore surrounding the Church of England general synod’s vote on female bishops, a general perception seems to be taking hold (mainly in comments threads under articles, and other places not particularly noted for their intellectual rigour) that the problem could be solved by making the Church of England subject to the Human Rights Act. This, the idea runs, would make discrimination against women illegal, and hence would force the Church’s hand in relation to female bishops. I’m not a lawyer – I’m so not a lawyer – but on the basis of the little I think I know, it strikes me things are a great deal less clear cut than that.

First of all, I’m not sure why people are talking about the Human Rights Act. It’s true that the European Convention on Human Rights, as incorporated into English Law by this Act, does mandate equal treatment on grounds of sex, but the Human Rights Act is not the ‘go to’ piece of legislation when it comes to sexual discrimination at work. The key legislation in this field is the body of employment law which has been developed over decades, and for which a whole specialist system of adjudication has been established – the Employment Tribunals. If the concern is discrimination against female employees, the obvious remedy is to make the Church subject to secular employment law. Such a move would, of course, create problems, not the least of which would be that the Church would be prevented from discriminating on the grounds of religion, and thus might be forced to appoint a member of another faith to their priesthood – an obvious absurdity, and no doubt the reason that religious organisations like the Church were exempted from employment equality legislation in the first place.

In fact, I have a suspicion that some people are arguing for the Church to be made subject to the Human Rights Act in the belief that such an action would not only force the Church’s hand on employment rights, but also in other areas in which the Church is keen to discriminate, such as same-sex marriage. (For the record, I’m using the word discriminate in its most precise meaning – ‘to note or observe a difference‘ – which even the most conservative and evangelical of C of E members would recognise as an accurate description of their wishes. Where they would depart from some others is in arguing that such discrimination is a godly thing: the separation of the ‘sheep’ from the ‘goats’, and all that.)

For what it’s worth, my deeply non-expert impression is that people pinning their hopes on the effect of making the Church subject to the Human Rights Act may be misguided. This is because Article 14, which outlaws discrimination on a very wide-ranging basis –

the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

– is balanced by Article 9, which grants very broad protection to those who wish to manifest their religious beliefs:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

So, it’s not just a simple matter of making the Church of England subject to the Human Rights Act and then – hey presto! – that organisation suddenly has to begin consecrating female bishops and solmenising gay marriages. Instead, it seems to me, any court reaching a judgement on a matter like the consecration of female bishops would have to answer a whole series of questions.

For example, there’s the question of whether or not barring women from leadership roles is intrinsic to the manifestation of the Anglican faith. Answering this question would, as so often, involve trying to work out which of two contradictory statements in the bible to rely on: 1 Corinthians 11:3, ‘the head of woman is man’; or Galatians 3:28, ‘there is no longer […] male and female, for you are all one in Christ Jesus’. (The surprising thing about this particular instance of contradiction is that both Galatians and Corinthians were written by St Paul, so this is not a question of different parts of the early church interpreting Christ’s teaching in different ways, but one person interpreting it differently for different audiences. No wonder biblical exegesis has always been such a fraught business.)

Equally, a court ruling under the Human Rights Act on a question of female bishops would have to decide if the prevailing Church of England position impacted on ‘the rights and freedoms of others’, and if so what the appropriate remedy should be. Again, I must stress that I’m not a lawyer, and you should take everything I say with several sackfuls of salt,* but I think it’s vanishingly unlikely that any court would order the Church of England to begin consecrating female bishops. It seems far more likely, in my wildly inexpert view, that a court would rule that the balance between those who wish the consecration of female bishops and those who wish the opposite is best achieved by allowing both groups the freedom to operate their own churches – and, if necessary, set up new ones – organised on the principles they prefer. This is, of course, the current status quo.

So far as I can see, this both is and should be a matter to be solved internally by the Church of England. I can’t see that making the Church subject to the Human Rights Act would have much effect. Given that those who support female bishops are already free to leave the C of E and set up their own church run along lines they agree with, I cannot see that a court would find that the Human Rights Act requires the C of E to consecrate female bishops. Making the Church subject to secular employment law might be more effective, but would also open up a hornet’s nest of subsidiary problems. Such a move would probably also itself be vulnerable to a challenge under the Human Rights Act: the opponents of female bishops have ample grounds in the form of both immemorial tradition and (selective) bible quotations to argue that the exclusion of women from leadership roles in the Church is a legitimate manifestation of their faith, and so protected under Article 9.

I understand why female priests in the C of E, and their supporters inside and outside the Church, feel upset and aggrieved by this decision. I understand what they mean when they say the decision – and particularly the manner of the decision, in which the overwhelming support for female bishops was frustrated because of arcane voting rules – has damaged the image and reputation of the Church. I understand that this frustration might lead to a desire to try and force the change they seek by any means possible.

But as a committed secularist who favours the absolute separation of church and state, I do not think that recourse to the secular law is appropriate. Secular law should, as the Human Rights Act does, guarantee the freedom of the individual in matters of conscience and religion, but it should not involve itself in the internal operation of faiths, provided they respect the basic rights of the individual – including, crucially, the right to leave and set up a rival church along more conducive lines. On the specific question of female bishops, it should permit both churches that fully integrate women and churches that relegate them to a subordinate role, and guarantee the freedom of the individual to chose which church they prefer. It is a matter of conscience for individuals whether they remain within the Church of England and seek to persuade it to consecrate female bishops, or whether they leave and set up a new church from scratch; the involvement of the secular law should begin and end with guaranteeing people the freedom to make that decision for themselves.

* – This statement should be understood as a facetious exaggeration of the familiar idiom relating to a pinch of salt, indicating that the opinions expressed should not be relied upon. It should not be taken literally, nor should it be construed as dietary advice. Aethelread counsels all readers, and all others, to adhere to official health guidance in all matters, including, but not limited to, the consumption of salt. Aethelread accepts no liability for any loss, damage, harm or inconvenience that results from any person or persons deviating from such guidance. On second thoughts, maybe I should be a lawyer…

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