Preview of the Israel Folau courtroom battle
Felix Ngole’s case transcript shows how the free speech v vilification issues may play out
The uncanny parallels between Israel Folau and the English social work student Felix Ngole, who was kicked out of his university course for Facebook posts, are reflected in the Ngole courtroom transcript.
The same issues, of conservative Christian views of LGBT persons, whether the views are well or badly expressed and whether a ban on expressing those views in public is need to prevent harm were canvassed in the UK Court of Appeal. Folau may be rich and famous, but what about someone obscure posting on Facebook or Instagram? Or what about a preacher in an obscure church who might be videoed? For people who back Israel Folau, and those who have mixed feelings or oppose what he did, examining the sort of questions that may be asked in court is helpful.
Christian Concern UK, which backed Ngole, has highlighted some key cross examinations. The full transcript is available here. John Sandeman
The three judges presiding over the case are Lord Justice Irwin, Lord Justice Haddon-Cave and Sir Jack Beatson. Ms Hannett is counsel for the University of Sheffield.
Sir Jack Beatson and Ms Hannett on expressing biblical views on same-sex relationships
SIR JACK BEATSON: Right. So, let me see if I understand the submissions. However politely and moderately a conservative religious biblical view about same-sex relationship is expressed in the context of social work where the social worker is dealing with vulnerable people, or even if it is expressed not in that context but so that it becomes public, that could be perceived as discriminatory.
MS HANNETT: My Lord, it is. Yes.
SIR JACK BEATSON: And reasonably perceived as discriminatory.
MS HANNETT: Yes, my Lord. Yes.
SIR JACK BEATSON: That is what this comes down to.
Lord Justice Haddon-Cave on the implications of this case for religious expression in public
LORD JUSTICE HADDON-CAVE: Counsellors. My Lord is right, that the implications of this could be very broad, if you are right, and can have a chilling effect, to use the word neutrally, on a whole lot of public expression of religious and other views.
Lord Justice Irwin on the implications of this case on Christians in professional jobs, not just social work
LORD JUSTICE IRWIN: But you do not need to know specific facts of interactions to see that this has implications beyond—-
MS HANNETT: I accept that, my Lord.
LORD JUSTICE IRWIN: There are going to be a range of professions and if your basic proposition is right here, then others will test it in those other professions, no doubt.
MS HANNETT: Yes.
LORD JUSTICE IRWIN: But it will be hard to make a distinction between social work, health visiting, counsellors, maybe police officers, teachers – particularly of teachers of those around the age of puberty. There is going to be a whole range of other groups who, if you are right, will be told by their professions, backed up by the courts: you simply cannot express biblical views about homosexuality in a way that can be linked to you.
MS HANNETT: My Lord, I accept that. I accept that. In those cases where their professional responsibilities have the kind of decision-making that we are talking about here, and are analogous to this.
LORD JUSTICE IRWIN: Yes.
MS HANNETT: So, I do think there is something peculiarly sensitive about the work that social workers do.
SIR JACK BEATSON: Doctors and nurses, barristers, solicitors.
On the freedom to say in church or in a Bible study group that homosexual practice is a sin
MS HANNETT: Well, I think I have to accept, my Lord, that there is not a discussion of how that might be done in a public way. Because, in my submission, making those views publicly as a professional is likely always to be problematic.
LORD JUSTICE IRWIN: However expressed?
MS HANNETT: However expressed, my Lord. Well, the views as they — on the very specific facts that you have before you, where there is an expression about both same-sex marriage and the morality of same-sex practice, my Lord, I say that is problematic for a social worker. My Lord, there are two points being made: not just that same-sex marriage is problematic, but that the same-sex sexual practice, and therefore by implication being in a same-sex relationship, is problematic, sinful, etc.
LORD JUSTICE HADDON-CAVE: So a social worker cannot express, let us call it, traditional Christian morality about homosexuality?
MS HANNETT: In public, my Lord, yes. Because, my Lord, as I have indicated, social work has a particular context. It has particular requirements to work with vulnerable service users. It is particularly important in social work that there is neither in fact discrimination on the grounds of protected characteristics, but there is perceived to be discrimination because of, for example, sexual orientation. Now, that does not say anything about what you might do in private in the context of a church, in the context of—-
LORD JUSTICE HADDON-CAVE: Well, a church is public.
MS HANNETT: My Lord, I am so sorry, I meant — I did not mean — I meant on Facebook in a public forum which is effectively searchable by anybody at any time. So if I am, for example, a service user who comes along, Mr Ngole is assigned as my service user, if I Google his name, those are the views that come up.
SIR JACK BEATSON: I mean, so you — and there was some discussion, I think, in response to questions from my Lords of Mr Diamond. Say he went to church and he was taking part in an event in church and somebody who was a service user or was about to be a service user came in, and something was said in church—-
MS HANNETT: My Lord, I think the proportionality balance in those kinds of cases might be rather different. Again, I come back to the fact-sensitive nature of the analysis, and the context, if I may say so, is in a church, in the context of expressing religion, it is not in the context of participating in a social media debate and engaging a particular Registrar in America. One can see much more clearly that where one is participating in a church service, one is much more clearly manifesting one’s religion or belief, and, again, I want to be quite clear, it is always going to be a fact-sensitive analysis, but one can see that in the circumstances such as my Lord has postulated, the balance would be rather different.
SIR JACK BEATSON: And if we go to my Lord’s example of somebody taking a YouTube — making a—-
MS HANNETT: Yes.
SIR JACK BEATSON: Using their phone to record it, and then posting it on YouTube, then—-
MS HANNETT: Well, that is different again, is it not, my Lord, because that is not necessarily the—-
SIR JACK BEATSON: But it is not — yes, it is—–
MS HANNETT: There may be a difference, again coming back to the fact-sensitive nature of the analysis. There may be a difference between the claimant actively participating in a broadcast to the world at large on YouTube in the context of his church, and the claimant participating in his church, and somebody else, unbeknownst to the claimant, videoing that and placing it on YouTube. They are slightly different situations, and the balance—-
On whether Mother Teresa would be able to become a social worker in modern Britain if she expressed that homosexuality is a sin
LORD JUSTICE HADDON-CAVE: Would Mother Teresa have fallen foul of the proposition that my Lord has just put to you?
MS HANNETT: My Lord—-
LORD JUSTICE IRWIN: We have made you spokesman for all sorts of people!
MS HANNETT: (Laughter)
LORD JUSTICE HADDON-CAVE: It is a genuine question.
MS HANNETT: My Lord, I can see that. I apologise for giggling.
LORD JUSTICE HADDON-CAVE: Not at all.
SIR JACK BEATSON: Thinking is not allowed, but giggling is not bad.
MS HANNETT: Giggling is apparently acceptable in the Court of Appeal. My Lord, we have to go back to the context again. We are a regulated profession. Albeit a profession and the standards that one signs up to when one enters the profession, and in those circumstances Mother Teresa was … My Lord, one cannot single out individuals. The proposition that I am making applies across the board. I have to accept that, and the difficulty that one comes back to again – a point that I made at the outset – is that the university is most certainly not saying that holding profound religious views is inconsistent with an approach of a social worker. No doubt many people hold profound religious views and act as a social worker. The difficulty is expressing those views in public in the circumstances as I have said where—-
LORD JUSTICE HADDON-CAVE: The proposition is that she would not have been able to say to her flock of many: this is actually a sin.
MS HANNETT: Well, you will remember we had some discussion yesterday about the context, and I was at pains to say there may be context in which the appellant can express his views where the proportionality balance may be struck differently. So, for example, in the church, in a Bible study session and so on and so forth.
LORD JUSTICE HADDON-CAVE: Yes, but—-
MS HANNETT: So there are always … Again, it is not, and again I hope I was at pains in asserting yesterday to (inaudible) on this expression – it is about understanding. There may be contexts in which because of your status as a social worker it is not acceptable to say those in public.
LORD JUSTICE IRWIN: Well, I was thinking overnight about what you submitted on that and it does bear on my Lord’s question. It is clear that somebody here searched the internet deliberately, found these postings and passed them anonymously to the university, or anonymously as far as the appellant is concerned. Now, that is a much more remote and obscure way of determining what Mr Ngole said than if he preached in his local church, once he was qualified, in a small city or a large town. He would much more readily and immediately be identified if he did preach on Leviticus and on this issue, even in a church. That would be around Kettering or Northampton or Winchester in no time. So how does the distinction—-
MS HANNETT: That may or may not be the case, and again I suspect—-
LORD JUSTICE IRWIN: Well, let us assume it is the case; he has posted to Winchester and he does so preaching in the relevant church; his views will be known; his role will be known; his identity will be known. In that instance, even if he is called John Smith, not Mr Ngole.
MS HANNETT: Yes.
LORD JUSTICE IRWIN: So, how does your distinction stack up?
MS HANNETT: Your Honour, it would entirely depend on the facts and the regulator would have to look at the facts and take a view. The fact that it is done in a church would take us straight back into Article 9, manifestation of religion and belief, and I suppose one would then … The regulator in those circumstances would have to determine whether or not specific facts of that balanced against the much more focused manifestation of the appellant’s religion or belief.
LORD JUSTICE IRWIN: But in what sense would that expression, if discovered, produce to any lesser degree a reasonable perception – quote/unquote?
MS HANNETT: My Lord, I think in my submission it would because one is, of course, talking about preaching in a church on the one hand and publishing one’s views on Facebook on the other. There is, in my submission, something qualitatively different about those two things – as I said, not least the proportionality balance that has to be done. In the case of a church situation, one is of course balancing these things, and it might be open to the regulator to conclude that the importance of religious expression in those circumstances outweighed any damage to the profession.
LORD JUSTICE IRWIN: That simply is another way of saying different considerations apply, but not saying that the reasonable perception would be any different. Why would the reasonable exception of the potential user of the social worker be any different if there was a direct expression—-
MS HANNETT: I accept that.
LORD JUSTICE IRWIN: — in church?
MS HANNETT: I accept that, but in saying that when one comes to look at the … What we are doing is – what the university was doing is looking at whether or not fitness to practise is impaired.
LORD JUSTICE IRWIN: Yes.
MS HANNETT: The court then is looking backwards at that and determining whether or not there has been a breach of the Convention right.
LORD JUSTICE IRWIN: Yes.
MS HANNETT: In the context of posting expression on Facebook when it is in the context of Article 10, one has to weigh … One is weighing the freedom of expression rights of the appellant against the Community rights, as it were, of maintenance of confidence in the social work profession. In my submission, in this context the answer the university has arrived at is compatible with those Convention rights. I accept entirely that there may be different circumstances where that balance leads to a different outcome. To answer my Lord’s question, that is not because the perception of the social work user is any different, but it is the balance that one then strikes at the end that is different.
Paul Diamond, religious freedoms barrister, in defence of Felix in court
“I am urging on this court to start grappling with these questions, because if we do not grapple with it now we are now going to be in a Tsunami, and we are on the edge of a Tsunami.”
“[The state] should neither coerce sexual practice acceptance if religious people do not accept that, and it is a view held by millions, and I will be submitting, in conclusion, that the place of the Christian faith in society, in particular, has sustained such systemic governmental and public assaults it has seriously weakened, and people are seriously intimidated.
“What I would say is Mr Ngole was always polite. He explains his Christian position and he gave it, he gave it straight, and other people said very offensive things. Are we really reaching a society where we can Google people on Facebook, tweets, or whatever they said, and their livelihood endangered by this, and this is why this case is important, one needs a strong judgment for freedom in this case.”