Is it fair that
people can once again
be fired for being old?
When my year held a dinner to celebrate the half-century since we entered Falkirk High School, I found that at 62 years of age I was the only one still in full-time employment. FHS was one of the fabulous high schools in the pre-comprehensive era which produced a new professional elite from the aspirational working class of industrial Scotland.
My contemporaries, a formidable array of doctors, lawyers, accountants, civil servants, university lecturers and senior teachers, had the wherewithal to call it a day around 60. I had hoped to do the same but the Kirk's pension woes had taken early retirement off the table and yet I have to say that these last five years were among the best of my entire career. Well, I hear people saying, the clergy only work one day a week – would you have been so happy if you had remained in the stressful head office of an international firm? Good point, but the next generation may have little option but to grind on in a job they may have come to loath because, outside the public sector, pensions have been trashed.
The Equality Act 2010 consolidated our Byzantine array of anti-discrimination laws and the default retirement age will soon disappear to allow the elderly to stay on in work. Of course that is the theory – it was only to be expected that in practice the judiciary would turn it into an arcane muddle resulting in more work and much gold for our lawyers.
A recent ruling by the Supreme Court has returned to employers the right to dismiss old people because they are old in certain rather enigmatic and ambiguous circumstances. It appears that a person may be lawfully dismissed on grounds of age if such dismissal meets the objectives of the latest social engineering dreamed up by the government. The most obvious example that comes to mind would be intergenerational fairness; and oldies can apparently be turfed out legally to reduce unemployment among the young.
The problem with this sort of political judgement is that the 'legitimate objectives’ of any government – given our muddle-headed policy wonks – are likely to be contradictory. The coalition wants to reduce the European-wide problem of youth unemployment and forcing older people to retire might allow some young people to at last find a job. Well, that could work for those who are not entirely unemployable but what about the need to delay the retirement age because the cost of pensions is a drag on the economy? And the government claims the right to arbitrate in competing claims of discrimination but, given the record of official incompetence, that is a recipe for disaster. After all, oldies are in this mess because all post-war governments oversaw a giant Ponzi operation: unfunded pyramid schemes for both state and public service pensions.
It is tempting to blame the whole fiasco on Gordon Brown's infamous Robert Maxwell memorial budget – tempting but the blame deserves to be much more widely shared.
Another example of a court's ability to muddy the waters of what seemed a clear case of social reform is the European Court of Human Rights' rulings in same-sex marriage.
In Gas and Dubois v France the court upheld the earlier decision of Schalk and Kopf v Austria that there is no right to same-sex marriage under the European Convention. However, it ruled that if a member state does decide to legalise same-sex marriage then it has to ensure that it is provided on exactly the same basis as heterosexual marriage. But our government has assured the churches that the legalisation of same-sex marriage will not change 'religious' marriage which can continue to be solely heterosexual.
This assurance is now at odds with the European Court’s ruling that there must, in law, be no difference between 'civil' and 'religious' marriage – both are the same thing. Thus if same-sex marriages are legalised they must be legalised on exactly the same basis as heterosexual ones and must be allowed in all registered places including churches. To further complicate matters, the Court of Appeal has ruled in the case of Ladele v Islington Council that the orthodox view of marriage is not a core part of Christianity. It would thus appear that if churches are told they must perform same-sex marriages if they want to perform heterosexual ceremonies they will have little legal ground to resist.
Alex Salmond was confident that clauses in his government's proposed legislation would exempt dissenting clerics from conducting same-sex marriages against their will. But it appears that, as Cardinal Keith O'Brien had long suspected, European human rights legislation will force the Scottish government to capitulate and remove such clauses. However, the convention also requires nation states to protect religious freedom and allows a 'margin of appreciation' for each nation to resolve a clash of competing rights. So the European court may allow legal exemptions to the general principle of marriage laws but the cardinal, the mullahs and the Kirk are not going to take that on trust.
US churches are protected by the First Amendment and it would be beyond folly for anyone to infringe on a church's right to deny religious marital rites for whatever reason. But the bottom-line in Scotland is that the government simply cannot offer a cast-iron guarantee that registered churches will not be forced to perform gay weddings. A partial solution would be to allow clergy willing to perform gay marriages such as the Episcopalian Richard Holloway and others from the Kirk access to the church. But that is not wholly satisfactory and is a form of the 'intrusion' which caused the Kirk's 19th-century Disruption and certainly no Catholic priest would be given permission.
As one of the few ministers of the Kirk who has dared to support gay marriage in the face of fierce official condemnation I deeply regret this unhelpful European court ruling.
John Cameron is a physicist and former Church of Scotland parish minister