I feel compelled to write more about the Ashers case because it could have serious ramifications that many people don’t seem to have grasped. It isn’t about a ‘gay cake’, in fact it has very little to do with sexuality or gay rights – the McArthurs who own Ashers did not know the sexual orientation of the customer. The Commission have now written to Ashers saying they are not only guilty of discrimination on the grounds of sexual orientation but also on the grounds of religion and political opinion. The issue is that if this case is lost, religion will have been effectively banished from the public square. Significant political freedoms will also be lost as the Equality Commission decides which political and religious views are acceptable and which are not. So as a repentant/former lawyer, let me make some observations on the case:
1. The Approach – The Equality Commission is soon to encompass good relations in Northern Ireland which seems ironic given that their first engagement with Ashers was a letter saying “we have advised Mr Lee that you have acted unlawfully . . . This letter constitutes a letter of claim in consequence of which we look forward to receiving your proposals to remedy your unlawful discrimination against Mr Lee within seven days of the dat of this letter failing which proceedings will issue before the County Court without further notice to you.” This is hardly a great way to build relations with a small family business. What about hearing their side before pre-judging, or saying “it appears you may have” or we would like to discuss? The Commission’s approach has been adversarial from the start and deeply unhelpful. Regardless of the result it must surely change the way it operates. I agree with the Presbyterian Church who said, “This is a deeply regrettable failure of civic leadership by the Equality Commission.”
2. Sexual Orientation – Regulation 3 of The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 deals with discrimination based on sexual orientation. In simple terms, to discriminate, you have to treat someone less favourably on the grounds of their sexual orientation. The McArthurs did not know the sexual orientation of the person ordering the cake and would have equally treated someone of a different sexual orientation ordering the same cake. As I have noted before, you can and should be able to discriminate between ideas, if for no other reason than that some ideas are bad. You cannot generally discriminate between people, and rightly so. Regulation 5 requires someone to discriminate against a person which did not happen here. I am in one sense not surprised that the Commission have widened the grounds of their claim as I think this one would be hard to prove.
3. Political opinion – This ground, as I understand it, is particular to NI and was designed to give extra protection against sectarianism. The Commission appears to be suggesting that views on gay marriage, which is not legal in NI, equate to political opinions. People have asked me today – would it be discrimination to refuse to print signs saying ‘no blacks allowed’ or ‘keep immigrants out’? It would appear that the Commission is saying ‘yes’. This is the danger of an Equality Commission that has no legal mandate to look at diversity, rights and responsibilities. The fundamental framework of the Commission and underlying legislation is flawed if this claim succeeds. Also, the Commission states on it website that it supports the introduction of legislation permitting same sex marriage in NI. The Commission therefore has political opinions and is therefore not neutral on this matter. Presumably a commissioner could publicly hold a different ‘political opinion’ on this matter?
4. Religious discrimination – It is reported that the fact that the McArthur family’s stance was motivated by their faith was enough for the Commission to make this a case of religious discrimination as well. The religion of the customer was irrelevant to the them being served so it is difficult to see where the discrimination is. My friend Danny Webster draws this analogy blogging on this case – it seems a Christian (or Muslim for that matter) would be guilty of discrimination for not selling pornography which they object to on the grounds of faith, but another newsagent who took the same decision without any religious motivation would be free not to sell pornography.
5. Reasonable Accommodation – Some, including the Christian Institute, have argued that this case demonstrates the need for ‘reasonable accommodation’ as suggested by Baroness Hale following the Bull case. I respect CI for backing this case and they have access to better legal minds than mine, but I am concerned by the reasonable accommodation argument. It seems to me to acknowledge discrimination has occurred but seek permission for it. As I have attempted to argue above, I don’t believe discrimination has occurred, and if it is found to have legally, then we need to review the underlying legislation. The reasonable accommodation argument concedes too much.
6. Copyright – If only the bakers had declined to put the image on because of copyright issues with Sesame Street things would have been so much easier, but a case like this was always going to come!
7. Costs – The Commission is paid for by us and this case will cost a lot of money. Ashers has to fund its own defence. It is being supported by the Christian Institute so some people will end up paying for both sides through their taxes and charitable giving! The irony is that Ashers should also be funded by the Commission to defend the claims of discrimination made against it.
This case will take some time to resolve and I foresee appeals. The good news is that it has stimulated debate. The bad news is that this case is about trying quash the very type of debate it has stimulated. I hope it will provoke those for, and against, gay marriage to realise the case is much bigger than that issue. It is not about special treatment for Christians, and we must be careful is how we talk about the case. It is about the civil and religious liberty, the right to hold political opinions and freedom of conscience. It is an attack on the very fabric of our society, dangerously close to the thought police in action. I for one, hope and pray the Commission lose.