A recent UK court decision upheld the decision of University authorities to remove a student, Felix Ngole, from a post-graduate Social Work course, because of views he had expressed in a public social media forum about the Bible’s view on homosexuality. In my opinion the decision is a shocking breach of principles governing both religious freedom and freedom of speech, and should be over-turned as soon as possible. For Australian readers, it is also a salutary reminder that when the law on marriage changes, it becomes harder to protect religious and other freedoms.
The decision, Ngole, R (On the Application Of) v University of Sheffield  EWHC 2669 (Admin) (27 October 2017), was an application for judicial review of an administrative decision made by the Appeals Committee of the University of Sheffield Senate, on appeal from a disciplinary decision (made by a “Fitness to Practice” committee in the Department of Sociological Studies) to in effect expel Mr Ngole from his course of study. In making its decision the FTP committee and the Appeals Committee claimed that they were applying “professional practice” standards laid down by the relevant body which accredited social workers in the UK, the Health and Care Professions Council (HCPC).
So what dreadful behaviour had Mr Ngole engaged in, such that it could be seen now (at the end of his first year of a 2-year professional course) that he was not fit to practice as a social worker? Perhaps it is best to quote directly from the Deputy High Court Judge, Ms Rowena Collins Rice. Mr Ngole had read, on a website hosted by the US broadcaster NBC, about the stance taken in Kentucky by registrar Kim Davis, who declined to register a same sex marriage and spent time in jail for doing so. (See my earlier post on these events at the time.) Judge Rice commented:
 His first post was to the effect that same-sex marriage was a sin. Challenged by another poster to demonstrate that the Bible said so, he responded by citing a number of Biblical passages. The public website conversation continued at some length, with a number of contributors, and Mr Ngole contributed around twenty or so very short posts before withdrawing from it. Among the posts was a reference to same-sex marriage as detestable to God; an observation that Homosexuality is a sin, no matter how you want to dress it up; a post including the devil has hijacked the constitution of the USA. This is a country that was built on the values of Christianity. Now it’s worse than a country worshipping idols; quotations from the Biblical book of Leviticus describing same-sex sexual relations as an abomination; other Biblical quotations on the subject; general references to the Bible as condemning ‘homosexuality’; an observation that It is a wicked act and God hates the act; God hates sin and not man; and an observation that He will also judge all those who indulged in all forms of wicked act such as homosexuality.
It is possible that some or all of these comments could have made with more sensitivity. But Mr Ngole had been asked by someone else to explain the Bible’s views on the matter, and the language he used seems to have been drawn from the Bible. He was posting in a public forum, not in any way associated with his professional training as a social worker, or in any way which would obviously suggest that his personal views would lead to him showing hatred towards, or discrimination against, same-sex attracted person. Indeed, the various committees all commented that there was no evidence showing that Mr Ngole had, in his personal interactions, showed any animosity or contempt for same sex attracted persons- see e.g. para .
Yet when these online remarks were brought to the attention of the University authorities, they investigated and concluded that he was not fit to be a social worker. The initial Departmental investigation “had concerns about the condemnation of same-sex sexual relations, or ‘homosexuality’, in the terms used, on a public forum to which people including social work service users could link him by name” (para ). Later the FTP formal investigation said that he
had transgressed boundaries which are not deemed appropriate for someone entering the Social Work profession. It was their belief that this may have caused offence to some individuals (at para ).
The Appeals Committee upheld the earlier rulings, saying to him that:
publicly submitting these posts had been inappropriate in the context of the professional standards set out in the HCPC’s code of conduct. In coming to this view, the Appeals Committee were particularly conscious of the fact that you are a student on a Masters level programme that leads to a professional qualification which involves dealing with members of the public. In addition, the Appeals Committee observed that throughout the FTP process … you had failed to acknowledge the potential impact of your actions. You have not offered any insight or reflection on how your actions and public postings on social media may have negatively affected the public’s view of the social work profession. Furthermore, you did not (in the context of comments posted on social media) appear to acknowledge or respect the relevance of the HCPC’s code of conduct regarding professional behaviours and standards. (see para )
It seems that there were three important questions at stake. First, were Mr Ngole’s remarks indeed in breach of professional standards applying to social workers? Second, if so, were those standards, or their application here, a breach of Mr Ngole’s religious freedom, which is protected in the UK by the European Convention on Human Rights (ECHR), art 9? Third, was there a breach of his right to free speech under art 10 of the ECHR?
1. Breach of Professional Standards?
The question as to whether what Mr Ngole had done, by referring to the Bible’s teaching on homosexuality, was a breach of professional standards is one of great importance, not only to social workers across the UK and elsewhere, but also to other professionals such as lawyers, or doctors, or accountants.
The HCPC standards applied are very broad. The ones that were most relevant were quoted in para :
“3. You must keep high standards of personal conduct
You must keep high standards of personal conduct as well as professional conduct. You should be aware that poor conduct outside your professional life may still affect someone’s confidence in you and your profession.
- You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession
You must justify the trust that other people place in you by acting with honesty and integrity at all times. You must not get involved in any behaviour or activity which is likely to damage the public’s confidence in you or your profession.”
In broad terms, these fairly uncontroversial statements are that the behaviour of a social worker outside their direct workplace (their “personal conduct”) can be relevant to the confidence of the public in the profession, and that this confidence should be maintained as far as possible.
But there is no explicit mention of views on homosexuality. At para  the advice is given: “try to be polite and respectful, and avoid using language that others might reasonably consider to be inappropriate or offensive”.
The University, in general terms, was expected to monitor students for compliance with these professional standards while they were studying.
One frustrating part of reading the judgment is being able to determine exactly how what was said breached the above prohibitions. True, it is not hard to see how some of the comments may have been regarded as “offensive”. It is never easy to hear that someone else holds a view that one’s sexual behaviour is wrong. But in fact the University and the Judge explicitly say that the causing of offence itself was not the main problem. However, the offensive of the speech was an issue in what was characterised as a situation of “power imbalance” between a service provider (i.e. Mr Ngole if allowed to practice) and a service user (a same sex attracted person who may need social worker services.)
… This is not a case about general public offensiveness, or about a matter on which views may simply differ. It is about the regulation of the relationship between service provider and service user, in which the balance of power and vulnerability is very unequal.
The issue identified by the Judge, following the various committees, seems to be simply this: that a possible client who was same sex attracted might one day “google” Mr Ngole’s name and discover that he personally adhered to a Biblical standard of sexual morality. This hypothetical person would then be harmed by this knowledge in some way. While explicitly ruling that what Mr Ngole had said was not “homophobic hate speech” (a significant finding, in fact), Judge Rice commented at :
real homophobia and its consequences do have to be dealt with by social workers also, and may well be issues in the lives of their service users. Concern to ensure that social workers are able, and trusted, to deliver services in those circumstances is an aim which is not only legitimate but necessary. The NBC postings were at the least capable of creating a serious barrier to that, when the perspective of service users is factored in.
In other words, Mr Ngole must be kept out of his chosen profession because of a chance that a future client may find a “barrier” to trusting him to provide them with services they need, because he holds a religiously based view that their behaviour was not in accordance with God’s will.
I hope it can be seen how astonishing this is. Social workers will regularly, no doubt, not approve behaviours engaged in by their clients. Some who need the services of social workers will be struggling with alcoholism or drug addiction, be perpetrators of violence against family members, or have engaged in theft. Does the fact that a social worker finds these actions wrong, mean that they cannot impartially assist a client? If so, I suspect social work would come to a complete halt. To repeat, there was absolutely no evidence that Mr Ngole would behave badly toward clients. Agree or not with their lifestyle decisions, he like any other social worker would have tools to assist them. Yet on this matter, his personal moral position was to be seen as an intractable barrier to his entering this caring profession.
In a lengthy judgment which sometimes seems to acknowledge the difficulties involved, Judge Rice near the end comes close to getting this right:
… If a chain of events, starting with a student posting Bible verses on a news website and ending with him being removed from his course, is one for which the law does not provide him with a remedy, it is important to test hard why not…
…Freedom of expression is an important right. Exercising that right to express the content of deeply held religious views deserves respect in a democratic and plural society, nowhere more so than in a university. Freedom of religious discourse is a public good of great importance and seriousness…
 … There is not, after all, an obvious incompatibility between deeply held religious views on the one hand, and social work on the other. There are no doubt plenty of excellent social workers with religious views as strongly and sincerely held as this student’s – quite possibly the same or similar views. Many, perhaps like him, are positively motivated by faith-based values or a sense of vocation to enter a demanding, caring profession working to help some of society’s most needy.
At the risk of sounding too “religious”- Amen! And yet in the end the “hard testing” of reasons, with respect, seems to come down to a decision to defer completely to what is described as the professional expertise of the University academics involved in the various committees. As the long judgment proceeds the word that her Honour uses again and again seems to be the core of the problem: that Mr Ngole had shown himself somehow to be “unteachable” (see the repetition of this term in paras , , .)
What did this mean? In the end it seems that the meaning of the term was: that Mr Ngole had not immediately apologised to the relevant authorities and promised never to speak about the Bible’s views again. To be frank, that seems to be the tenor of the various comments that are made. And that seems to be a total denial of important rights such as religious freedom and free speech.
Comments are made by various committees that it was not the “content” of the online views as such, but the fact that he did not acknowledge the seriousness of the behaviour and its impact on others. While that sounds plausible at first (and I have not had access to transcripts of the various hearings to test its validity), what makes me suspect that in fact this was not the only problem was other aspects of what it is said he should have done. Much was made, for example, of that fact that he would not promise to speak about his religiously based beliefs ever again- see e.g. para .
And as counsel for Mr Ngole pointed out, if the response to the complaint becomes the issue, then of course he is caught in a “Catch-22” situation- for the more he protests his rights, the more he will be seen to be uncooperative and (that dreadful word!) “unteachable”! The University’s claim, counsel said at :
is impermissibly self-reinforcing by treating every stage of challenge by Mr Ngole as nothing more than further evidence of his unfitness to practise.
A small sample of this Orwellian approach may be provided. The Appeal Committee in delivering its decision said (see ):
“…throughout the FTP process (from the initial departmental investigation meeting to the Appeal hearing) you had failed to acknowledge the potential impact of your actions. You had not offered any insight or reflection on how your actions and public postings on social media may have negatively affected the public’s view of the social work profession. Furthermore, you did not (in the context of comments posted on social media) appear to acknowledge or respect the relevance of the HCPC’s code of conduct regarding professional behaviours and standards. … The fact that you had failed to take appropriate responsibility for, or show any insight into, the potential impact of your postings on social media and that you had no willingness to reflect on your actions in the context of the standards of behaviour required by the HCPC meant that, on balance, the Appeals Committee was satisfied that the Faculty FTP Committee’s decision was proportionate.”
I have no direct evidence as to whether Mr Ngole did any of these things, but they all sound like their real meaning is: say you were wrong, promise you won’t speak about this again!
If it is accepted that Mr Ngole’s behaviour, then, by posting on a pop culture website some comments reflecting the Bible’s views, was somehow incompatible with a future career as a social worker, questions then arise as to whether this policy is compatible with his rights to freedom of religion or free speech. In this lengthy comment I will simply summarise the findings here briefly.
2. Defence of religious freedom
Art 9 of the ECHR provides as follows:
Article 9 – Freedom of thought, conscience and religion
- 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.
- 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 for the protection of the rights and freedoms of others.
The rights given by the Convention are directly enforceable against public authorities (including Universities) under the UK Human Rights Act 1998. Art 9(2) contains a clear, but limited, set of circumstances in which the right to “manifest” religion or belief may be constrained or limited.
It seems fairly obvious that in his comments Mr Ngole was manifesting his Christian beliefs. In a previous case with some similarities to this one, Smith v. Trafford Housing Trust  EWHC 3221  IRLR 86, a Mr Smith had made comments on a Facebook page opposing same sex marriage, and it was accepted that these comments were motivated by his religious views. In that case it was held that Mr Smith had been wrongfully penalised by his employer for the remarks he had made. At para  here the remarks of Briggs J in the Smith decision are quoted, and worth repeating:
“The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.” (at para  in Smith)
But in Mr Ngole’s case the somewhat astonishing position was reached that art 9(2) was not even relevant! Here is the argument put forward by counsel for the University at :
Ms Hannett, for the University, approached the question of the Convention significance of ‘religious speech’ from the perspective of the Art.9 authorities on whether examples of religiously-motivated actions should be recognised as a protected ‘manifestation’ of religious belief within the terms of Art.9.2. Those authorities are clear and consistent that not every act motivated or inspired by religion or belief is a protected ‘manifestation’. 9 does not guarantee the right to behave in public in a way ‘dictated by belief’. To be protected, an act, in the first place, must be ‘intimately linked’ to the religion or belief, and there must be a sufficiently ‘close and direct nexus’ between the belief and the act, albeit not necessarily a religious duty or imperative (see for example Lord Nicholls in R v. Williamson v. Secretary of State for Education and Employment  2 AC 246 paragraphs 30 – 33; Eweida at paragraphs 79-82).
Yet Judge Rice decided the case on the basis there was no “religious imperative” to offer comments on the Kim Davis case. At para  she said:
…in Art 9.2 terms, there is no intimate link – no sufficiently close and direct nexus – between that act and the holding of Christian beliefs in themselves, so as to render it a protected manifestation of religion in its own right.
This seems a clear error of law. While paying lip service to the proposition that something need not be a “religious duty” for it to be protected by art 9 (a proposition more than amply supported by the 2013 Eweida case, protecting an employee’s right to wear a cross as jewellery), the comments above seem to take this precise approach. Indeed, it seems as though, unless something has been said “in church”, it will receive little consideration.
 The NBC postings were not made in a religious context of the sort which could potentially bring it close to the examples of worship or devotion recognisable as forming part of the practice of a religion or belief in a generally accepted form. They were made in the essentially political context of news media, as a religiously motivated contribution, albeit with a high religious content, to a political debate about the place of religious belief in the delivery of public services. I was shown no authority on Art.9.2 which justifies regarding that as a protected manifestation of religious adherence or creed.
This error alone ought to justify an appeal, in my view.
3. Defence of freedom of speech
It was at least accepted that what had been done to Mr Ngole was a prima facie breach of his ECHR art 10 right to free speech- see . Interference then needed to be justified as “prescribed by law”, for a “legitimate aim”, in a way which is “proportionate”, in a way which takes into account the “importance of the objective” to be achieved, the “rational connection” of the step taken with the objective, and the “intrusiveness” of the interference with free speech compared to other steps that could have been taken (these terms are taken from the headings in the judgement). Considering these matters, and the “overall fairness” of the decision, Judge Rice as noted above in the end deferred to the “expertise” of the various committees in concluding that Mr Ngole was “unteachable” and not suitable to be a social worker.
In a brief addendum, Judge Rice held that this result was not affected by the fact that Professor Marks, chair of the local FTP panel, had a long history as a campaigner for LGBT rights, and indeed at one stage (in a disputed claim) had apparently “(mis)described the NBC postings as “homophobic” or “discriminatory”” (see para ). There was no evidence of actual bias, and the fact that there were two other committee members removed any claim of “apparent bias”.
The decision of the University here, and of the court, are a sign of some of the serious challenges being made to the ability of those who hold “conservative” religious views to play a role as professionals in Western societies.
Another high profile case with some similarities involves the various challenges to the ability to practice law of graduates from the proposed Trinity Western University law school in Canada. Because TWU, a Christian University, requires students and staff to enter a “community covenant” to abide by Biblical standards of sexual morality, some Law Societies have claimed that it, and the students it would produce, are “homophobic” and unfit to practice law. (See here for my last blog comment on the proceedings, from November 2016; this decision and others of a similar nature have now gone to the Supreme Court of Canada for final appeal.)
The approach of the UK High Court in the Ngole case seems fundamentally wrong. It overstates the harm to potential (not even actual current) clients, from the possible discovery that someone providing them with professional assistance does not approve of all of their moral choices. It downplays the scope of religious freedom, reducing it to little more than the right to speak in church. And it undercuts rights of free speech without showing that terminating someone’s professional career as a response to remarks made in an internet forum, was really a proportionate and fair response. It is to be hoped that a further appeal might restore a better balance for these important human rights. The alternative- that committed Christian social workers who are prepared to serve the most vulnerable in the community because of their deep commitment to serving Jesus Christ, will be unable to serve because of their views on sexual behaviour- seems to be a bad outcome not only for Christians, but for all those in society who would benefit from their service.
In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Neil Foster, of Newcastle, NSW.
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