Sunday 10th October 2021
The ecclesiastical law of the Church of England, as with the entire corpus of English law, is made up of rights and duties. For example, every person in this nation has the right to be baptised, to be married and to be buried at their parish church. The right to worship is of course a basic common law right, which is also enshrined in Article 9 of the European Convention on Human Rights. And such rights are of course not limited to the religious sphere, under the European Convention there is also the right to life, the right to the peaceful enjoyment of property and so on. Part of the administration of justice is ensuring that the people of this nation are able to exercise their basic legal rights which enable them to flourish as human beings.
But what happens when these rights gradually, or suddenly, become restricted, often for arguably good reason? Where is justice and where is the rule of law? And does Christianity offer anything at all today to help ensure that justice is upheld?
To explore this I’d firstly like to take you back to early September 2008 when I was a somewhat nervous, newly qualified, solicitor at Slaughter and May in London. This was the time of the global credit crunch, and I was put on the team advising Her Majesty’s Treasury on the imminent collapse of Bradford & Bingley PLC, which in the end was nationalised or taken into public ownership. This was only the beginning: within a week or so, HBOS, RBS, and Lloyds TSB, all needed dramatic intervention from the government in order to survive.
But what is interesting is this. Northern Rock, the first UK bank to fail, and Bradford & Bingley, were saved by the government taking them completely into public ownership; by operation of law the shareholders of these institutions had their shares, their own property, taken away from them overnight and without their knowledge or consent. We can ask – was this an interference with their convention right to peaceful enjoyment of their property? So the shareholders of Northern Rock argued, unsuccessfully, in a litigation that went to the Court of Appeal. Or were these erosion of rights a lawful action of a government in a time of crisis for the good of the country and indeed humanity?
Twelve years on and there is another crisis: Covid-19. March 2020 saw one of the most fundamental restrictions and erosion of people’s liberties and rights ever in the United Kingdom. Under the Coronavirus Act 2020 and various other legislative instruments, people were prohibited from going about their normal lives. They were no longer permitted to go to their workplace (unless they couldn’t work from home), play team sports, socialise with friends. Places of worship were closed by the state for the first time since the reign of King John in the thirteenth century. Basic rights and freedoms were taken away overnight in order to protect the NHS and save lives. It is extraordinary to reflect on how quickly our rights can not just be eroded but entirely be taken away by the State. More extreme action than the banking crisis of 2008, and a far greater restriction of rights, yet the vast majority of the country supported these lockdown measures as another legitimate action of a government in a time of crisis, actions that were for the good of the country and indeed humanity.
By way of a final example I want to move to Margaret Attwood’s 1985 novel The Handmaid’s Tale. Set in a dystopian future there is a new global crisis: infertility which is causing a collapse in birth rates around the world; the extinction of humanity is becoming a distinct possibility. In the United States there is a revolution in response to this crisis, which ushers in a theocratic, totalitarian regime known as Gilead. Women have all of their rights taken away and they are assigned to marriages, to serve as handmaids to the wives of powerful men in the manner of the biblical Rachel and her slave Bilhah. The women are not permitted to read or write, and they stripped of their names, known only in relation to the man they serve, Of-Fred, Of-Stephen, Of-Glen, Of-Joseph and so on. This is of course a harrowing and terrifying narrative, not least as we know to our shame that this is not in fact entirely fiction: in many places in the world women are treated in such a way today. In Gilead this action was justified by the State: an erosion of rights as a legitimate action of the State in a time of crisis for the good of the country and indeed in this case for the saving of humanity.
I offer these three examples to illustrate the fundamental importance of the law to our lives. In a democracy such as ours we elect parliamentarians partly to respond to crises, and we’ve seen that we tend to accept that even some of our basic rights may need to be restricted to keep us safe. But there is a fine line and we rely on the judiciary, the lawyers, to ensure that the action taken is reasonable, and that the rule of law is upheld.
Crucial as this is, you might ask what does this have to do with Christianity? Why do we meet today in this place, in the context of an act of worship, to ask God to bless you in this critical work? As you administer justice, you could argue that there is a fundamental principle of English law that religion has no public place in the decision-making of the courts. The courts separate law and religion. They administer human justice, the changeable political will found in Acts of Parliament, and so on. Courts don’t exist to administer God’s law, but to resolve differences: establish facts, apply law, and enforce rights and duties by remedies or sanctions. This is the rule of law. That certainly seems to be the position of Jesus in this morning’s second lesson: ‘to render therefore unto Caesar the things which are Caesar’s, and unto God the things that are God’s’. The temporal and the spiritual are separate.
Yet the history and reality of English law would suggest otherwise. One of my most distinct memories from Law School was, and which lawyer could forget it, the 1932 case of Donoghue v Stevenson – the snail in a bottle of ginger beer. Mrs Donoghue, the injured party, was not a party to the contract as the ginger beer had been bought for her. So what was her recourse? In this case Christ’s command to love our neighbour was famously used by Lord Atkin to develop the duty of care in the law of negligence. Furthermore, a courtroom even has semiotic resemblance to a church or chapel. A church has a cross; a courtroom has the royal coat of arms with a cross and the words ‘God and my right’. At the communion rail, we petition God in the Eucharist; at the bar, lawyers plead their clients’ causes. In the pulpit, we testify to the Gospel truth; in the witness box, we testify to the truth of a cause. Ritual too: clerics are ‘Reverend’, some judges, ‘Your Worship’; we stand when clergy and judges enter; in Church we bow to the cross and in Court to the royal coat of arms.
So perhaps Christianity is more present in the reality of our legal system that we realise. But most pertinently when we consider the erosion of rights is the voice of conscience. For Christians God is active in the consciences of all of us, including lawyers. God is there calling us in our conscience to do everything that we can to protect the vulnerable and to ensure all human beings have the right to be heard and to flourish: that should always come first.
It is of course not easy to strike this balance. Igor Judge, former Lord Chief Justice, said in 2008: ‘The judicial oath binds my conscience, as it binds the conscience of every judge who takes it’. He means: the judicial conscience requires a judge to apply the law. But Lord Kerr, speaking in 2013, took a wider view: ‘that a judge is constrained by no more than [their personal] conscience in deciding [cases] is as fundamental to the health of our system of justice as it is possible to imagine’; especially as judges make ‘policy choices’ and ‘moral choices’ – not just ‘legal’ choices.
This in the end returns us to where we began. As we look to the health of our nation, a nation that is divided, a nation that is struggling to emerge from a global pandemic, a nation where government is powerful and able to dispense with fundamental rights, we thank God for our lawyers, our judiciary, who listen to their conscience, who make all sorts of choices, to ensure that the rule of law is upheld.
It is a mammoth, awe inspiring task to which you have been called, a vocation that is fundamental both to the life of our nation and also especially to the lives of those whose voices so often go unheard. But you do it with God’s help, heeding those words of the Prophet Micah: ‘what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God’. This morning we pray with you that you hear God’s word and exercise justice with mercy, and in doing so you will be humble before both the rule of law and before our God who is a God of justice, mercy and peace. Amen.