The employment status of ministers: a judicial retcon?

“Retroactive continuity”, often abbreviated as “retcon”, is a literary device used to describe the way in which new information is retrospectively added which re-sets the established continuity of a fictional work. Today, the term “retcon” is often used in literary criticism and particularly in relation to science fiction to describe the altering of a previously established historical continuity within a fictional work. To date, however, the concept has not been used in relation to law. Legal judgments often refer to history and include historical accounts of how the law has developed. Such judgments invariably include judicial interpretations of history. On occasions, they may even include a “retconned” interpretation of legal history – a “judicial retcon” – that misrepresents the past and rewrites history to fit the “story” of the law that the judge wants to give. This article explores the usefulness of a concept of a “judicial retcon” by means of a detailed case study. It takes a close textual reading of the UK case law concerning whether ministers of religion are employees. It contends that the twenty-first century decisions provide evidence of a “judicial retcon” in that accounts of history in the judgments re-set and re-interpret the twentieth century case law to overstate the boldness of the twenty-first century cases.