Sacking GP from government drugs advisor post for ‘anti-gay’ views was lawful

R (Dr Hans-Christian Raabe) v. Secretary of State for the Home Department [2013] EWHC 1736 (Admin) – read judgment

Dr Hans-Christian Raabe lost his judicial review challenge to the revocation of his appointment as the GP member of the Government’s Advisory Council on the Misuse of Drugs (ACMD). His appointment was revoked less than a month after he had accepted an offer to join the ACMD, as a result of certain views about homosexuality expressed in a paper he had co-written in Canada some 6 years earlier.

This case deals with a heady cocktail of controversial issues, ranging from same-sex marriage to the level of crystal meth use in gay clubs, and from paedophilia to the ostracising of Christians because of their religious beliefs. Indeed, it hits so many hot-button issues at once that it is very surprising it has not yet received much media coverage, despite the judgment being handed down on 20 June.

The Facts

Dr Raabe had originally been appointed as the GP member of the ACMD in January 2011. Shortly afterwards it came to the attention of the Home Office through various media reports that Dr Raabe had co-authored a paper in 2005 entitled “Gay marriage and Homosexuality: some medical comments”. The purpose of this document had been to influence the then-ongoing debate about the legalisation of same-sex marriage in Canada.

The 2005 paper was a four page document covering various topics, including the health risks of the homosexual lifestyle (somewhat ironically, given the context of this case, there does not appear to have been much detail about higher rates of drug misuse). Most controversially, the paper made various statements suggesting there was a connection between homosexuality and paedophilia. It also contained a number of contentions about the adverse effects of family breakdown. It was never actually published by Dr Raabe himself, but it had been posted on various websites by third parties.

In the course of the appointment process Dr Raabe had been asked a standard question: was there anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the ACMD or the Home Office? He did not mention this article in answer to this question; indeed, his evidence was that he had not even thought of it as he didn’t see how it was relevant to the ACMD’s work. He did mention that he had previously stood as an MEP for the Christian Peoples Alliance Party, but this was not considered to be an issue.

In the event the 2005 paper was unearthed by the BBC and taken up with gusto by the Observer (meanwhile the Daily Mail was welcoming Dr Raabe’s appointment as an indication of a harder-line approach to illegal drugs).

Following a period of unwanted media attention, Dr Raabe’s appointment was revoked by the Secretary of State on the grounds that he had not disclosed his authorship of the paper in advance of his appointment, that the paper was polemical and assembled material in a way which disparaged gay people, their lifestyles and relationships, that the emergence of the paper was embarrassing (especially as s.149 of the Equality Act 2010 – the public sector equality duty – required the Department in the exercise of its functions to have regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups) and because of the impact on the effective functioning of the ACMD. Notably, the decision to revoke Dr Raabe’s appointment was contrary to the recommendation of Professor Bernard Silverman, the Government’s Chief Scientific Advisor, who thought on balance it would disrupt the working of the ACMD more to remove Dr Raabe from the post than it would to keep him. It was also, in a strange twist, criticised as unfair and discriminatory by the very commentators and journalists who had first broken the story.

Dr Raabe brought judicial review proceedings complaining that his dismissal was in breach of natural justice, that it took into account irrelevant considerations (including that: (i) the minister was also responsible for Equalities; (ii) the Department wished to promote itself as an employer of LGBT people; and (iii) Dr Raabe’s views were not consistent with the government’s) and that the decision to revoke was irrational as it interfered with his fundamental right to hold and manifest religious beliefs (and hence must satisfy the test of anxious scrutiny per Bull v Preddy [2012] EWCA Civ 83).

The Judgment

Stadlen J produced a very long judgment, which sets out in great detail over some 276 paragraphs the content of the 2005 paper, the Judge’s critique of it, the events of January-February 2011 and the submissions made by both parties. However, at the end of the day Stadlen J accepted the characterisation of the paper as polemical. Although he rejected the suggestion by the Secretary of State that it was “bluntly anti-gay” he accepted the argument that the material was assembled in such a way that it disparaged gay people and their lifestyles and it was for this reason that Dr Raabe had his appointment revoked. Although the paper was given a scientific veneer by the authors it was in reality an opinion piece, and Stadlen J concluded that it was likely to cause grave offence to homosexuals and adversely affect the smooth running of the ACMD.

The relevance of the latter point was that the ACMD was particularly concerned with poly-drug use in minority communities, including the LGBT community (that’s where the use of crystal meth in gay clubs comes into this case). The Judge concluded that it was reasonable for the Secretary of State to consider that having somebody holding Dr Raabe’s views on the ACMD called into question whether it would receive the co-operation from the LGBT community that would allow it to carry out its functions. Considering the media storm engendered by the emergence of his views he had been given proper opportunity to make representations as to why his appointment should be maintained, so there was not a breach of the rules of natural justice.

Dr Raabe did not directly pursue a challenge under Article 9 (freedom of religion and belief), but did raise it in the context of an irrationality challenge. This was also unsuccessful. The Judge commented that although this case did not turn on the difference between acts which are a manifestation of religious belief and those which are motivated by such religious belief, the opinions expressed in the 2005 paper fell into the latter category and therefore they were not protected by Article 9. As with Bull v Preddy, Dr Raabe did not face difficulty in manifesting his religious beliefs more generally. In any event the paper purported to be scientific and not religious in nature and it was not in dispute that the most obviously offensive features of the paper (i.e. the section about a link between homosexuality and paedophilia) did not form part of any religious belief.

Comment

This was a difficult case for Dr Raabe to win. The Secretary of State’s decision to revoke his appointment could certainly be seen as a rather cowardly capitulation in the face of media pressure or as a failure to take a sufficiently robust stance in defence of freedom of speech and tolerance of unpopular or non-mainstream views. However, once Stadlen J found against Dr Raabe on the natural justice and irrelevant considerations points, it was an uphill struggle to say the decision was irrational.

Stadlen J gave pretty short shrift to the Article 9 arguments in this case, describing them as “a red herring” (para 245). However, the distinction he mentioned between a manifestation of religious belief and an act motivated by religious belief is a difficult one to draw, and it is not entirely clear following the decision in Eweida that there is such a distinction at all.

On a practical note, this saga is a salutary lesson in the great ease with which past writings, however obscure, can now be found online. It is only fair to Dr Raabe to point out that this paper was never actually published by him but was rather put out into the public domain by others. Moreover, he accepted that the language used in the paper was overly ‘strident’ or ‘harsh’, that some of the points made were controversial or could be easily misunderstood, and that if he wrote it again he would have used a more careful and conciliatory tone. Yet despite all this, these intemperate words written 6 years previously came back to bite him. The author of this blog post, for one, is certainly now being extra careful about what he publishes!

More broadly, the obvious concern about a judgment such as this is that it may have a chilling effect on the exercise of freedom of expression and freedom of belief, however fact-specific the ruling was. In particular, the Marriage (Same-Sex Couples) Bill is moving towards its Report stage in the House of Lords on 8 July, and this decision undoubtedly has wider implications for the question of whether the Bill contains sufficient protection for the freedom of speech and freedom of belief of opponents of same-sex marriage. Stadlen J was at pains to emphasise that it was not Dr Raabe’s opposition to same-sex marriage per se that was at issue, but rather the manner in which it was expressed. For example:

“…there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future.” (para 256)
“Nor is there any evidence to suggest that his appointment would have been revoked if it had emerged that he had written an opinion piece against same sex marriage in balanced terms which were not considered to be offensive to the LGBT community upon whose co-operation the work of the ACMD in part depended.” (para 257)

However, in essence the outcome of this case was that it is lawful and reasonable for the Government to revoke a public appointment on the basis that members of the LGBT community would find certain views of the appointee to be offensive. Given that some members of the LGBT community have publicly stated that they find any opposition to same sex marriage to be ‘bigoted’ and offensive, however carefully it is expressed, Stadlen J’s assurances that opponents of same sex marriage will not find themselves excluded from certain aspects of public life may be optimistic.

Practitioners who represent equalities groups might be interested in the suggestion made on behalf of the Secretary of State in this case that if an LGBT group had wished to challenge Dr Raabe’s appointment on the ground that the Defendant had failed to take into account a relevant consideration, namely the views expressed in the 2005 Paper which would impede the gay community’s willingness to work with him, they could have done so. This may be an argument that equalities groups decide to pursue in future and that Government departments will have to respond to in due course.

The problem is that this could encourage a more aggressive and fractured mode of public debate, where various interest groups regularly try to prevent the appointment of anyone they disagree with, or shout ‘offensive’ at any view they don’t like, rather than fostering an environment in which there can be frank exchange of different views but people are willing to work alongside even with those they strongly disagree with. An unintended consequence of a case such as this may well be increasing blandness in public appointments, out of fear that a more radical appointee may not only cause upset, but even lead to legal challenge.

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