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Opinion: The Archbishops’ Council, the Pastoral Principles, and freedom of speech

20 June 2023

A new ‘Proportionality Assessment’ will help tribunals to judge Christian discourse when disputes arise, Malcolm Brown argues

Church of England

The Pastoral Principles for Living Well Together

The Pastoral Principles for Living Well Together

ON 16 June, an employment appeals tribunal ruled that Mrs Kristie Higgs’s appeal had been upheld. Mrs Higgs was a teaching assistant who lost her job for reposting material on Facebook that a parent regarded as transphobic. Her case will now be heard again at another employment tribunal.

Those who looked beyond the headlines will have noticed that there was a third party in the appeal hearing: the Archbishops’ Council of the Church of England was given leave to intervene with arguments intended to help the tribunal come to a balanced judgment.

Why did the Church of England get involved in the case of Mrs Higgs and her employer?

Over many years, cases which pitch Christians with particular views against people who find those views offensive have been fought between binary positions, with little nuance.

On the one hand, the representatives of Christians claiming to have been discriminated against have argued that the freedom to express their beliefs in public was absolute, whoever it offended. On the other, a chill-factor was leading employers to regard any expression of religious belief as potentially problematic.

Senior contacts in the legal profession told us of a judiciary increasingly frustrated with the way in which these cases were being argued in the courts, with the aggressive voices beginning to be seen as typically Christian. There may be a problem about expressing religious belief in public — but not exactly the one which some of the campaigning groups describe.

MEANWHILE, the Church of England has been living for many years with profound internal disagreements, especially on matters of human identity and sexuality — precisely the areas which typically lead to the employment tribunals.

As a result, the Church evolved the Pastoral Principles for Living Well Together, setting out parameters for “good disagreement”, showing respect for difference, alertness to the dynamics of power, and the need to nurture trust.

From these, the Church’s team intervening in Mrs Higgs’s case developed a Proportionality Assessment, which would allow tribunals to assess not only the facts of what someone had said but how it had been said: the context, the manner, the relationship to the hearers, and so on. We offered this Proportionality Assessment to assist the tribunals and with complete neutrality as between Mrs Higgs and the school.

In her judgment, the President of the Employment Appeals Tribunals, the Honourable Mrs Justice Eady, noted how the church’s Pastoral Principles laid the foundations for a proportionate approach. In upholding Mrs Higgs’s appeal and remitting her case to be heard again, she explicitly advised the new tribunal to apply the Proportionality Assessment which the Church had proposed. That assessment thus becomes the test against which cases of this kind will be judged in future — not as a conflict between absolute rights, but weighing the facts with the impact of the words counting as much as their content.

AND so the Church of England has helped to establish that Christians stand for a tolerant and plural society, not just their own religious freedoms. How one encounters other people, and how one shows that they are valued and respected, is crucial to an authentic Christian faith.

With the Proportionality Assessment in place, employers and individuals will be better placed to assess a perceived offence and to resolve it before taking it to law. People who make a mistake, or act naïvely, should be protected; those who use their expressions of faith (or opposition to faith) to provoke an angry reaction, or who trample over the integrity of others, will see that their legal claims are likely to fail.

And we hope that the lazy assumption that religious belief is only truly authentic when it is strident and “in your face” may have been laid to rest.

The Revd Dr Malcolm Brown is the Church of England’s Director of Faith and Public Life.

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