Opinion: Human Rights Act – when rights clash

 

As one of the many who have recently joined the Liberal Democrats, my attention has been drawn to the fight to make sure that the Human Rights Act is not scrapped by the Conservatives. In a recent email from Tom Brake MP, we were reminded of the following rights afforded to us by the Human Rights Act:

  • the right to life;
  • the prohibition of torture and inhuman or degrading treatment or punishment;
  • the prohibition of slavery and forced labour;
  • the right to liberty and security of the person;
  • the right to a fair trial;
  • prohibition of punishment without law;
  • the right to respect for private and family life;
  • the right to freedom of thought, conscience and religion;
  • the right to freedom of expression;
  • the right to freedom of assembly and association;
  • the right for men and women to marry and found a family;
  • the right to peaceful enjoyment of personal property;
  • the right to education;
  • the right to free elections;
  • and the prohibition of discrimination.

But what happens when there is friction between two or more of these rights?

The recent case of Ashers Bakery in Northern Ireland provides an example of this, and pits the prohibition of discrimination directly against the right to freedom of thought, conscience and religion.

Tim Farron MP spoke of the Ashers case on Question Time last week (about 54 minutes in):

“It’s a shame that it ended up in court, but when all is said and done, it’s important that you stand up for peoples’ rights to have their own conscience. But if you provide a business, it’s absolutely vital that you treat everybody the same and don’t discriminate and don’t act in a prejudicial way… If you’re providing a service, that’s the key thing, if you’re providing a service, you need to do so without prejudice, without discrimination to those who come through the door.”

Mr Farron is in agreement with the presiding judge, but I feel differently. It was a major achievement for liberal values when gay marriage was rightly made legal in the UK. However, this was done whilst respecting differences in belief by not forcing churches and other religious institutions to conduct such ceremonies.

Whilst we may not agree with their stance against gay marriage, it is their right to hold that belief rooted in their Christian faith, and it is just as important that this right is upheld as any other outlined in the Human Rights Act. Additionally, I do not believe that they discriminated against the customer based on their sexual preference rather the message on the cake. Whilst the owners may well have suspected the customer was homosexual, I cannot countenance that they would have produced the exact same cake for a heterosexual customer.

If you take the customer out of the equation, and look at the matter as solely the message on the cake, the case comes down to whether the shop should be allowed to refuse to create a cake with a message against the owners’ beliefs (and whether we like it or not, against the legal status quo in Northern Ireland). In this simplified (perhaps oversimplified) world, is it not comparable with a bakery owner refusing to create a cake that advocates the legalisation of cannabis?

* Alan Smith is the pseudonym for a new member, whose identity is known to the editorial team

Read more by or more about or .
This entry was posted in Op-eds.
Advert

51 Comments

  • Helen Dudden 1st Jun '15 - 11:27am

    For sometime I have supported the need to improve on the justice within the Hague Convention and the Brussels 11a. The right to a family life, the rights of a child/children to have the care of both parents when a relationship fails. Only a few weeks ago I sat and listened in the Supreme Court in London to yet another case in dispute.

    Children suffer, the UNICEF Bill of Human Rights gives the child the right to know his family. If there is no legal reasoning why not, then why not?

    I think we should retain the bill, if there are still failures in the system as this highlights, why remove further rights.

    It may seem of little importance to anyone who has not been in the above situation, I can assure it is painful to all concerned.

  • Jayne Mansfield 1st Jun '15 - 12:16pm

    I believe the judgment was the correct one.

    There are many interpretations of what it means to be a Christian and what Christians should believe. In the recent past some people have used Christianity to excuse and justify racism.

    @ Mark Wright,
    What happens when the Christians a business targets also happens to include gay Christians?

  • Shaun Young 1st Jun '15 - 12:17pm

    Hi Alan,

    Firstly, welcome!

    Like you, I have had discussions with friends about the issue of ‘Rights’ – Some, as you have pointed out felt that the owners should have had their ‘Right’ to refuse upheld. I however considered the judgement as fair, given that this was a business.

    One of the issues I raised in discussing this was, as an employer would they have the right to request that all of their employees were committed Christians? Would this be an accepted form of discriminating against anyone applying for employment with their company? Then if it is, which form of Christianity would they consider to be acceptable to them? If someone was a Quaker, just as deeply committed to their faith, but may hold diametrically opposed views to that of the owner, would it be acceptable for their application to be rejected? Or, if an applicant stated on the application, that they were agnostic or atheist would it be acceptable for the business to reject their application on the basis of this information? Where or how could businesses draw the line over whether any employees, on the basis of their faith choose to serve or provide customers with the service on offer, by requesting from the customer private and personal information? How could a business operate based on judging customers from their colour – If a customer looks Asian/Middle Eastern, then would the business have the right to refuse to serve that person, based on the ‘assumption’ that he/she may not be of the Christian faith and therefore hold theological opinions that are contrary to Christian teaching?

    Then, returning to the issue of the cake – If a heterosexual couple had ordered an engagement cake, would it be right for the owners to ask if they were engaging in pre-marital intercourse? As if they hold such deeply committed Christian values, then how could they contemplate taking the order? If a couple who are middle aged went to order a wedding cake, would it be acceptable based on their belief to ask the couple if they had ever been divorced?

    It is a tricky and difficult road to travel and no judgement is ever going to be ‘universally’ accepted, but as long as we have a judiciary that have the freedom to apply considered interpretation of the Law without Government interference or pressure, then this is something we must ensure is not eroded.

  • Malcolm Todd 1st Jun '15 - 12:49pm

    I’m really baffled by this case: from what I can gather, the bakery refused to print a political slogan (“Support gay marriage”) on a cake and for that reason is considered guilty of discriminating against the would-be customer on grounds of sexuality. But that’s nonsense, isn’t it? I mean, I support gay marriage and I’m straight — does anyone suppose that if I asked the bakery to print the same slogan, they would have done it? It’s the message they objected to, not the sexuality of the person commissioning it. What am I missing here? How can this judgement possibly be right in law, to say nothing of principle?

  • Mavarine Du-Marie 1st Jun '15 - 12:55pm

    @Cllr Mark Wright: “is making the voluntary decision to bring their private religion into the public realm of their service provision.”

    Religion is not private, it is an embodiment of a persons belief and a lived experience, that can be expressed in any realm to various degrees or not at all, if that individual wishes to do so in their interactions on a daily basis. That freedom as a right goes for thought, conscience and religion, as well as the right to freedom of expression; under the Human Rights Act and doesn’t state that religion must be private and separate from work, we are not automated beings but are sentient beings that live in a transient and segue world.

    Cordially,

  • Helen Tedcastle 1st Jun '15 - 12:59pm

    Alan Smith

    ‘ Additionally, I do not believe that they discriminated against the customer based on their sexual preference rather the message on the cake.’

    The activist who was served in Ashers bakery was treated courteously and his order was taken. The slogan was designed to provoke this incident yet according to the ‘equality act’ the bakers’ freedom of conscience is of less importance than the customer’s due to their sexual orientation, even if the person concerned was setting the bakers up for a fall.

    Cllr Mark Wright

    ‘ someone calling themselves a “Muslim printer” or “Christian baker” is making the voluntary decision to bring their private religion into the public realm of their service provision’

    The Ashers bakery is a family bakery and is well known as a bakery run by Bible-centred Christians.

    In Birmingham, in parts of the city there are establishments which advertise as Halal bakeries or Kosher bakeries. This is not an issue for most as they are seen as part of the rich multi-cultural tapestry of the second city. In fact, Birmingham advertises itself as a vibrant diverse city because of its mix of communities who openly advertise themselves with their religious identities.

    Religious identity in the UK has never been something which dare not come out into the open. There is little distinction between the private and public realms – because until very recently this was not an issue for anyone bar a small number (national secular society for example) who have little sympathy for any open religious expression anyway. However, UK has a much better record of tolerance than secular France but even there Jews are allowed to run Kosher bakeries.

    I wonder whether people would be up in arms against the Jewish-run Kosher bakery if a National Socialist activist asked them to ice a cake with a nazi slogan? Doubt it.

  • Malcolm Todd 1st Jun '15 - 1:06pm

    Mark – you’re probably right, and that would have been a more arguable case. But I don’t think that’s what’s happened in this case, is it? And we shouldn’t support legal sanctions against someone on the basis that even if what they’ve actually done isn’t against the law it suggests there’s a real likelihood that they would do something against the law if the situation were to arise…

  • John Roffey 1st Jun '15 - 1:19pm

    Does this fall within the Human Rights Act?

    The DWP have launched a last minute appeal against an order by the Information Commissioner that they must publish controversial claimant death statistics. There is now a strong possibility that the figures will never be published.
    Employment and support allowance ‘death statistics’ cover the number of ESA claimants who have died soon after being found fit for work, as well as those who died after being placed in the work-related activity group.

    A previous release of ESA death figures caused such controversy that the DWP have since refused to publish updated statistics.

    The decision by the Information Commissioner to order publication more recent figures was made in February of this year. But it was withheld for months, before finally being sent on 30 April to the DWP and to Mike Sivier, the campaigning blogger who has been pursuing the figures for years.

    The DWP had 28 days in which to submit an appeal to a freedom of information tribunal, which they did yesterday with less than two hours to spare.

    Unfortunately, this is far from the final stage in the proceedings if the DWP are determined to avoid publication. If they lose at the tribunal they can then go on to the high court, the court of appeal and the supreme court.

    In addition, the government are now considering changing the law to give ministers an unchallengeable power to veto any freedom of information disclosure they choose.

    http://www.benefitsandwork.co.uk/new…e-light-of-day

  • @ Cllr Mark Wright
    I think you tried to side step the issue with a bit of a straw man argument.
    I’m guessing that if you took a pamphlet with a cartoon of Mohammed on the front to an Asian print shop, you would get a response of O.K.,..I ‘ll do you a print run of 500… for £100,000.
    Not a refusal that could be challenged in court,.. but same message,… get out of my shop and go elsewhere please.

  • John Roffey 1st Jun '15 - 1:22pm

    Sorry – this link did not post:

    “A previous release of ESA death figures”

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/223050/incap_decd_recips_0712.pdf

  • The problem here is that one person’s right to take part in society as a full, equal participant regardless of their sexual orientation is clashing with someone else’s right to hold and act on their religious belief. In this case it’s especially difficult because both religious belief and sexual orientation are protected characteristics under equality legislation.

    I wouldn’t take either side out of the equation myself. After all, if we take the service provider out of the equation and just consider the availability of cakes, it becomes simply a matter of whether it is reasonable to expect to be able to buy a cake with a customised message on it. But that doesn’t help us to solve the problem.

    The cannabis promoting cake analogy doesn’t hold, because one’s opinion on the legal status of cannabis use isn’t a protected characteristic, and in any case it isn’t illegal to campaign for changes in the law through the medium of cake.

    In my view, the general assumption should be that one can purchase a cake with anything at all written on it. Then the provisions of the law should be applied, meaning that of the infinite variety of cakes possible, those cakes that call for discrimination against people based on whatever characteristic could reasonably be rejected by the baker who would then have a case for refusing service. Perhaps a cake that directly incited lawbreaking rather than calling for laws to be changed could be refused too. But what we have here is bakers trying to claim that their protected characteristic trumps another.

    Just as one does not have to be gay to be a victim of homophobic bullying, one does not have to be gay to be discriminated against based on sexual orientation. The baker, on encountering a request for a pro-gay cake, made a judgement based on an attitude towards homosexuality and gay people in general, applied it to their customer and refused service based on it. That is discrimination based on sexual orientation regardless of the customer’s own orientation, and is a sorry situation. As Mr Farron said, it’s a shame it ended up in court, but businesses need to provide services to all even when they do make homophobic judgements of their customers.

  • David Howarth 1st Jun '15 - 1:55pm

    People might want to read the judgment in full:
    http://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2015/Lee-v-Ashers_Judgement.pdf
    From a purely technical point of view there is a problem in the way the court dismisses without much in the way of reasoning the ‘compelled speech’ point – the argument that article 10 includes a right not to be forced to say something one doesn’t believe. I would expect that point to loom much larger as the case rises through the appellate structure.

  • jedibeeftrix 1st Jun '15 - 3:03pm

    Oh how I wish we would axe the very principle of protected characteristics.

  • T-J

    “The baker, on encountering a request for a pro-gay cake, made a judgement based on an attitude towards homosexuality and gay people in general, applied it to their customer and refused service based on it.”

    Are you sure? You are reading in to the motives far more than the evidence would support. Under your interpretation a gay couple walking in to the bakery would also be refused service if they were ordering a cake for a straight friend/relatives wedding. Are you confident that would also apply?

    What seems far more likely here is that the objection of owners was to the compelled speech aspect.

    Cllr Mark Wright

    “@David – I’m not sure. The court upheld forcing a religious marriage registrar to say “I now pronounce you married” to gay couples, when the registrar didnt believe that either.”

    You are talking about a state employee speaking on behalf of the state, forcing a private business and the private individuals running their private business to say something. If a bakery refused to supply a cake saying “Man United are the best” because they were supporters of another team demanding that they supply the cake would be forced speech.

  • David Howarth 1st Jun '15 - 3:54pm

    @Mark
    Ladele v Islington (which is the case I guess you’re referring to) was, as I recall, argued solely on the basis of article 9 and no article 10 point was taken. In any case one argument that needs to be tested is whether compelling a private person to say something is different in terms of proportionality from compelling a state official to say something.

  • Malcolm Todd 1st Jun '15 - 4:11pm

    David Howarth
    “In any case one argument that needs to be tested is whether compelling a private person to say something is different in terms of proportionality from compelling a state official to say something.”

    Yes, absolutely this.

  • Helen Tedcastle 1st Jun '15 - 4:18pm

    Cllr Mark Wright
    ‘ @Helen – political belief isn’t a protected characteristic, is it?’

    But the key point is this: Ashers served the customer ie: did not discriminate against the customer based on their sexual orientation rather the message on the cake. As Alan Smith points out, ‘Whilst the owners may well have suspected the customer was homosexual, I cannot countenance that they would have produced the exact same cake for a heterosexual customer.’

  • Another point that needs to be made in this case is that the main body of the judgement is based upon the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1988.

    Often people say that a judgement is brought on the basis of the HRA when it is more likely to be some other act or order. The HRA is actually quite toothless on many issues. It is particularly week on free speech, David Allen Green explains this well:
    http://blogs.ft.com/david-allen-green/2014/09/16/english-judges-free-expression-and-the-criminal-law/

    All the screaming about HRA by those who want rid of it tends to overlook that many cases are brought on the basis of several challenges with the HRA in the mix yet the HRA gets all the blame for any judgement which people don’t like the outcome.

  • Helen Dudden 1st Jun '15 - 6:31pm

    Helen Tadcastle. Not sure what your comments meant about a sign on cake and a Kosher bakery. I hope anyone would find putting that type of sign on cake, not done.

    Being someone who attends a Synagogue on a regular basis, I understand how at present just how difficult things are.

    It was difficult for many during those war years. Not only Jews.

  • David Allen 1st Jun '15 - 6:55pm

    I agree with Alan Smith. Frankly, this is about deliberately going out to take the p*ss out of your political opponent, and then calling the law down on them into the bargain.

    Why not go into Joe Bloggs the Signwriters, and ordering a massive sign saying “Joe Bloggs is an Idiot”? Then if Joe refuses to serve you, call the police and tell them to arrest Joe because he discriminated against you – because you were gay / black / female / white anglo-saxon protestant (delete as appropriate)?

    Why not try going into a Muslim bookshop, and explaining that you’re organising a bonfire, and could they sell you a Koran? And then expect the police to intervene on your side? Don’t laugh, someone will try it.

    If the law can support p*ss-takers and sh*t-stirrers, then the law is an ass. I’m relieved to read, in David Howarth’s post, an indication of how the law should be able to extricate itself from asinine behaviour. Let’s hope it happens quickly.

  • Just a few quick points

    Helen Tadcastle, please don’t draw the comparison with a national socialist asking for a national socialist cake to be baked. A cake calling for equal marriage is not the moral equivalent of a cake calling for the extermination of the Jewish people. It should be non-controversial that wanting to recognise same-sex relationships in the law with the ceremony of marriage is not equivalent to wanting to commit mass murder.

    Psi, that’s not my interpretation at all. I just don’t necessarily agree that the separation between the person and their attitude towards gay people and equality is as strong as you do. In any case, I’m sure that yes, if the gay couple in this bakery were ‘not too gay’, and doing something nice and normative like buying a cake for a straight couple’s wedding, they’d be served no questions asked. After all, if we keep our sexuality behind closed doors and don’t rub anyone’s faces in it, whatever that means, then we’re perfectly fine, aren’t we? Sure. And that there is the difference between a tolerant society, which I must likewise tolerate living in, and an accepting society, which I wish I lived in.

    David Allen, I’m sure that a sign that was actually defamatory would result in a perfectly reasonable refusal of service – the nature of the sign would be different. A defamatory statement, not a point about gay rights. Even if Joe Bloggs’ annoying customer were gay, the choice to refuse service would be clearly linked to Mr Bloggs being disinclined to write a sign defaming anyone particularly himself, and not linked in any way to any presumptions about the customer’s sexuality or any negative attitude towards people of that sexuality in general.

  • Malcolm Todd 1st Jun '15 - 11:37pm

    T-J, please don’t make this out to be about saying “Keep your sexuality quiet and we’ll tolerate you.” The issue is, quite clearly and explicitly, the message of support for gay marriage, which is a political question. Even some gay people who’ve fought for gay rights for years were against gay marriage, you know, though I don’t find their arguments any more compelling than the Christian bakers’.
    I’m rather tired, by the way, of this idea that a “tolerant society” is a terrible thing. A society in which people are happy to accept people who don’t do anything they disagree with isn’t superior to what we have; it’s what we already have. Tolerance is necessary precisely because the alternative is not allowing disagreement about what’s right.

  • Personally, I think a decision whether or not to make a cake is up to the baker, but that it should be pointed out that the reasoning for the refuel is laughable in the 21st Century. Trying to legislate on these things is pointless and worse actually reinforces the special pleading of the religious which in turn curtails freedoms as we try to balance out the reality that religion can harbour all kinds of peculiarities that clash with secular sensibilities and the desire to move on. Trying to force the intolerant to be tolerant is about as empty an exercise as you can get.

  • Jayne Mansfield 2nd Jun '15 - 9:14am

    @ Malcolm Todd,
    Yes, I agree this is about someone not sharing someone else’s political beliefs.

    I thought that in England, under the supply of Goods and Services Act 2010, refusal to provide the cake would be deemed illegal.

    If I were to ask a bakery run by a gay baker, to provide me with a cake saying ‘support heterosexual marriage’ because I was going to an event where such a message seemed appropriate, I paid for it and I was then told that it would not be provided because the owner did not support the message, (at no point had the owner been under any obligation to support the message), I would have a case.

    Are there no lawyers on Lib Dem Voice because many of us are baffled by this case and the discussions that have ensued?

  • Malcolm, if its about the political message then its not important enough to refuse service over. Me, bake a Vote UKIP cake? Sure, that’ll be a tenner then. As I said, if the customer was asking for something defamatory, for example a ‘Christians Are Idiots’ cake, then sure, refuse service. But to take an order and then turn around and say actually, on second thoughts, we’ve decided that you breach our editorial policy?

    Personally, I would have been happy with a court decision that simply required the bakers to make it clear on their advertising that their ‘any design you want’ cakes are subject to a review process inspired by a particular interpretation of Christian morality. Stick it in the small print next to ‘may contain nuts’, perhaps.

  • SIMON BANKS 2nd Jun '15 - 1:42pm

    I agree absolutely that a rights approach, for all its benefits, doesn’t provide a ready answer when rights clash. On this particular case, I reach Tim Farron’s conclusion rather than Alan’s. That people are treated fairly without discrimination on grounds of sex, ethnicity and the rest really is fundamental to a Liberal society. While as a Christian I see nothing wrong in celebrating a gay marriage, I understand that others honestly believe otherwise. But if I have a religious or philosophical objection to humans eating meat, I don’t become a butcher or even (if my conscience says it’s wrong) a corner shopkeeper selling corned beef. If you provide a service, it should be non-discriminatory. Besides, the baker was not being asked to celebrate gay marriage – only to provide a service to someone who had chosen to do that.

    It’s a sad business, but I believe the judge was right.

  • Jayne Mansfield

    “Are there no lawyers on Lib Dem Voice because many of us are baffled by this case and the discussions that have ensued?”

    There probably aren’t any specialising in NI Law most will be E&W or Scottish Law. I don’t know how many Alliance party members are reading here…

  • matt (Bristol) 2nd Jun '15 - 2:41pm

    As I understand it, the judge in the Asher’s case stated a wider much principle than what is being heard by Christians who wish to feel persecuted as a judgmental declaration of ‘this person was discriminated against for their sexuality and you Christians must repent for that you bad, bad people’. (This is supported by the rhetorical tendency to assume – against all reasonable evidence and to a tragic extent in Northern Ireland – but not exclusively there – that all Christians do or should believe the same things)

    The judge seemed to state in an interview I heard that either a vendor needs to state they will not produce an object with any political or religious message, or they are implicitly obliging themselves to produce objects with any political or relgiious messages; which I translate as meaning there is no right to discretion in chosing who you sell a politically or culturally or religiously messaged item to because of the risk of dicrimination, whether that is conscious or not.

    Therefore, I think this was not about sexuality per se – this was about the right of sellers to critique and limit what their clients wish to use a produced object or item to say.

    Also, I don’t think this case is a product of the Human Rights Act in itself – I can see that this case could have gone to law and to the ECHR under the old dispensation … it would have just taken a hell of a lot longer and cost more money. (Lawyers will be able to argue this one better than me)

    Rights need to be held in tension, because they do necessarily clash. Those who make those judgements about what to do when they clash need to show their working, but that is true if you’re GP, lawyer, social worker, nurse, etc who all make these sorts of discernment decisions in human rights-relevatn cases, using provisions and guidnacnes based onthe Human Rights Act day after day after day.

    The HRA is about underlying principles. Again and again and again we have cases which illustrate discernment-based decisions based on the interpretation of those principles, and we are told that ergo, the whole edifice must change. This is baby vs bathwater stuff and its getting silly.

    And I need to say I am a relatively conservative Christian and don’t myself believe that Christian churches should carry out single-sex marriage, I am still sceptical about what the future direction of travel will be on this issue, and I don’t want to see Christians who oppose single-sex marriage barred from stating that opposition robustly.

    I just don’t think this is what happened in this (the ‘Ashers’) case, and religious people are being hoodwinked to play along a culture war that is an unnecesary and divisive simplification of the world word into ‘good’ vs ‘bad’. Bah.

  • T-J

    “And that there is the difference between a tolerant society, which I must likewise tolerate living in, and an accepting society, which I wish I lived in.”

    Long may we continue to live in a tolerant society not an accepting one. I have no wish to see a world where the only ideas are “acceptable” ones, I will however tolerate other people holding views I consider unacceptable, as they must tolerate my expressions of disagreement. It is a purely academic point as an “accepting society” is impossible as you would have to control people’s thought to moderate them so the difference between points of view is sufficiently small to make other views “acceptable.”

    “I’m sure that yes, if the gay couple in this bakery were ‘not too gay’, and doing something nice and normative like buying a cake for a straight couple’s wedding”

    In which case you accept that the problem is not with the customer but with the transaction. If they would supply a wedding cake for a straight wedding but the purchaser was gay then the customer is not being discriminated against on the basis of their sexuality.

    The judgement is one of those which contains one of those odd comments by judges where she states: “I find, on the evidence before me, that the Defendants did have the knowledge or perception that the Plaintiff was gay and /or associated with others who are gay. The reasons for this finding are that the Defendants must have known that the Plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the Plaintiff was attending; it was known to the 3rd Defendant that the Plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake; those graphics included ‘support gay marriage’ together with a reference to ‘QueerSpace’ and the 3rd Defendant was aware of the ongoing debate on same-sex marriage.” It assumes that if you Support same sex marriage you must know the person was gay or “associated” with people who were gay. You don’t have to be gay or have gay friends to support gay marriage, also the chances are that every customer the bakery has probably “associates” with people who are gay, it shows nothing special about this customer.
    [ http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2015/%5B2015%5D%20NICty%202/j_j_2015NICty2Final.htm ]

    If the case was as some had assumed that it was the refusal to serve a wedding cake to a gay wedding then the discrimination on the basis of sexuality would be a reasonable position to take. However, as I said before, a case should be heard on its merits not extrapolations in to hypotheticals. Something tells me that someone had already tried that with the bakery in the past and found they had responded in a way that didn’t give a strong enough basis for action.

    I think the Bakery’s legal team made submission that weren’t the best for winning but were probably more in line with what the backers of their defence wanted to argue in court.

    The important point here is that the decision was right (ignoring the bit about discrimination on the basis of sexuality) in so far as the The Fair Employment and Treatment (NI) Order 1998 which is to prevent discrimination on the basis of political opinion. So the political opinion of the bakery (well their staff) causing the bakery to refuse a product that provides a message that disagrees is discrimination.

    I find the idea of political opinion discrimination overriding the free speech (no forced speech) to be unacceptable but that is probably the bit that will end up being contested on appeal. So again it is not the case was the HRA forcing people to do something, rather it is another law (the ’98 order), which will probably be challenged on appeal on the basis of the HRA. You will see the opponents of the HRA lining up to attack it, when it will probably be used to defend ‘their side’ sad really, the Tories are fixated on their turnip-ghost.

    More than likely the bakery could get around these regulations by changing the structure of the business, which makes a bit of a joke of the regulations.

  • David Allen 2nd Jun '15 - 3:39pm

    T-J

    You argue that the baker, or signwriter, would be justified in refusing to produce a sign or slogan which was defamatory, irrespective of who was the customer. That as far as it goes is a fair point.

    What about going to an Ulster Protestant company and asking to buy a sign, or a slogan on a cake, which said “The Pope Rules OK”? What about going to a vegetarian cake maker and demanding a cake with the slogan “Meat is Great – Eat Some Today”?

    You can be a nasty propagandist without necessarily using a defamatory slogan. Just because you have cleverly converted your hate-speech into a notionally “positive” slogan doesn’t mean the law should let you get away with it.

  • matt (Bristol)

    “Also, I don’t think this case is a product of the Human Rights Act in itself – I can see that this case could have gone to law and to the ECHR under the old dispensation … it would have just taken a hell of a lot longer and cost more money. (Lawyers will be able to argue this one better than me)”

    I have a comment in moderation to explain in more detail, but it is not the HRA but two pieces of NI secondary legislation. If anyone wants to attack the HRA using this case they will find the only basis is that it is not tough enough in the free speech provisions.

  • @matt (Bristol)

    I think you are getting at something here that makes sense of this case. It would be interesting to see what is actually in the written judgement. Obviously, there is an interesting aspect to this as to whether labelling yourself as a “Kosher bakery” etc., is sufficient to say what you will or won’t produce, or whether you actually need a (written) policy available for inspection, that spells things out. I suspect a written policy that can be pointed to will avoid doubt, however it would not surprise me that some zealot will still take a “traditional butcher” to court for not selling halal meat and hence discriminating against some group or other…

  • Perhaps this has been mentioned, but did anyone see last weeks edition of ” The Good Wife” on More 4. This whole issue came up, here it was a wedding planner who would not plan a wedding because of her belief against a Gay marriage. The argument came down to whether a religious accommodation adversely affects the discrimination laws, the setting was Idaho where Gay marriage was legalised last October. The Judgement was that it did so the decision was in favour of the plaintiffs, ie the two Gay partners. Amazingly this edition was transmitted virtually the same week as the Northern Ireland judgement. So both seem to be in line. The Gay plaintiff did say that if the planner had just told him she was fully booked up, he would have accepted it, so there is another question, could the law be encouraging people to lie.
    I guess we may have the same issues coming up over this extreme Jewish sect, the Belz who say children cannot attend school if driven there by their mothers or other females.

  • matt (Bristol) 2nd Jun '15 - 4:38pm

    Roland, from what I recall of what I confess was an item Radio 4’s World at One, the issue of selling or not selling religious goods or goods produced in a religious way was irrelevant to how the judge perceived the judgement, and the judge (who was being interviewed) was talking purely of it in terms of a vendor who sells tailor-made goods with written slogans on not being able to say to the person who wants x statement ‘I won’t write THAT’ retrospectively, they can only say in advance, in writing – ‘it is our policy to not produce goods with statements that openly advocate political, cultural or religious agendas’ and they have to show that they are applying that policy consistently.

    In the case of a request to sell halal meat, for eg, surely the issue of one’s ability and resources to carry out or verify the safety of a particular process comes into the picture, and the issues are different.

    This is about something where the processes for writing ‘support gay marriage’, ‘I love Doctor Who’, ‘Rowan Williams for Pope’, ‘Peter Robinson And Martin McGuinness Are One Man Wearing Different Wigs’ and ”Urgle burgle I’m a teapot’ are all the same, directly comparable, the only difference is content.

    So this is not about the vendor’s positive right to freedom of expression, it is (in the judge’s mind) about a negaritive (ie preventative) value judgement being made by the vendor to restrict the choices and options of the buyer based on content, and (if I understand correctly) the implication of the judicial decision is that that value judgement is not something a vendor of goods such as this can apply on an adhoc basis, they must create for themselves clear scrutinisable criteria which set out in advance how they will make that value judgement.

    Phew.

  • matt (Bristol) 2nd Jun '15 - 4:39pm

    I meant negative, not negaritive, which sounds good but is not a word (AFAIK)

  • matt (Bristol) 2nd Jun '15 - 4:59pm

    Psi, I’ve just read your note about the difference between the HRA and the various legislations that build on it, (not to mention the various Codes of Practice etc that are not legislation per se, but seek to implement HRA and ECHR principles). I agree entirely.

    There is this gross complacency that you can somehow magically rewrite or repalce the HRA, or even worse, will it null, and all the judgements and actions which the tabloids deplore in specific for all kinds of contradictory reasons, will magically cease. This is delusional.

  • matt (Bristol) 2nd Jun '15 - 5:04pm
  • Psi, you’re taking a bit of a leap when you assume that the fact I wish I lived in a society that was accepting of sexuality and its diversity means I want to force the rest of the world into a grey mush within one standard deviation of my opinion on everything. As I say, I have to tolerate not living in such a society.

    And in my view, the locus of the problem, whether it rests with the customer, the transaction or the baker, misses the point. The issue is clearly that the baker has a problem with homosexuality and gay people in general, and wants to refuse service to people who said baker believes are connected with it and them. Being involved with a campaign for equality is a connection and means that one may become a victim of homophobic prejudice regardless of one

  • Huh. Tablet touchscreen issues have made a mess of this. The moderation machine got the half-digested results of my thought process, but the gist is probably there. To continue:

    David Allen, I don’t think I would be too bothered about your examples. Cakes that attack are a problem, cakes that promote other viewpoints less so. Idealistic, perhaps. Although yes, hate speech can be dressed up in false positivity. Guess that’s why we want flexibility in our legal system.

    Heh. Cakes that attack. Anyway, I’m at risk of talking myself round in circles now, so we should probably refer all this to some subcommittee within the Lib Dem Friends of Cake and be done with it for now.

  • T-J

    You open your post by citing that Psi is taking a bit of a leap when assuming
    “that the fact I wish I lived in a society that was accepting of sexuality and its diversity means I want to force the rest of the world into a grey mush within one standard deviation of my opinion on everything”

    Yet you are happy to assume that the baker

    ” has a problem with homosexuality and gay people in general, and wants to refuse service to people who said baker believes are connected with it and them. Being involved with a campaign for equality is a connection and means that one may become a victim of homophobic prejudice regardless of one”

    I would put it to you that one being against gay marriage does not automatically mean that they have a problem with homosexuality. I would then put it to you that it is a seismic leap further to assume that someone opposed to gay marriage has a problem with gay people in general. Such conflations are, I feel, at the root of the problem on this matter and are unfair to all sides. I believe that, the conflation of being against gay marriage and being prejudice against gay people is unfair to Christians, and builds up walls between the two parties when I am fairly confident in assuming that the vast majority of Christians who are against gay marriage do not have a problem with homosexuals.

  • Helen Dudden 2nd Jun '15 - 6:50pm

    A Kosher bakery produces products in line with Kosher laws. You don’t mix certain products together. If an egg had traces of blood, not to be used. Obviously using Kosher products is not one that allows the mixing of dairy and meat products.

    Also, preparation areas covered by the above, also baking equipment. Nothing more difficult to understand. A Kosher establishment carries a guarantee of the above.

    As a vegetarian, and someone who ears Kosher I would expect the above.

  • Denis Loretto 2nd Jun '15 - 6:52pm

    Many issues come before the courts which involve careful consideration of what can appear to be conflicting rights. The essence of the rule of law is to accept the judgement of the courts on such issues, subject of course to the right of appeal where appropriate. I understand the cake case is going to appeal.

  • Matthew Huntbach 2nd Jun '15 - 11:32pm

    Suppose a bakery run by a married gay couple were asked to bake a wedding cake on which was written in large letters “A PROPER marriage – between a man and a woman”.

    I think they would be entitled to say “Sorry, no, we just don’t feel comfortable doing that”.

  • Helen Tedcastle 5th Jun '15 - 6:52pm

    T-J
    ‘A cake calling for equal marriage is not the moral equivalent of a cake calling for the extermination of the Jewish people’

    I drew no such direct comparison on a moral basis. As others have said, the slogan on the cake was in fact a political slogan. So the analogy stands.

    Secondly, as I said before, the activist was served and his order taken. The objection came to the slogan on the cake which was directly against their deeply held beliefs. As bakers, they have the right not to carry out the order to ise the cake with a political slogan – something seen by them as a direct provocation,

    I am pleased that actor and human rights campaigner Patrick Stewart (also a humanist btw) comes down firmly on the side of Ashers in a recent Newsnight interview.

  • @Matthew — No, I disagree. If the company’s business is producing written matter at the request of clients — whether they be printers or makers of clothing or cake bakers — then they should not let their own preferences intervene between the client and the product. What if you wanted to print a stack of campaign literature, and you went to the printer and he said, “Sorry but I’m Conservative, I won’t publish that Lib Dem tripe”? I don’t know about you, but I would call that unfair. Businesses who offer their services to the paying public are something more than private individuals negotiating a deal, and as such have a duty to treat their customers equally.

  • Richard Underhill 15th Nov '16 - 8:27am

    Amnesty International are campaigning to save the Human Rights Act. Liberal Democrats are onside. Amnesty should understand that not all supporters have email addresses or mobile ‘phone numbers.

  • Richard Underhill. 11th Nov '19 - 2:47pm

    Jayne Mansfield 2nd Jun ’15 – 9:
    The Human Rights Act overrides all other law. New law must comply with it and the relevant minister must tell parliament that it does, giving reasons. Attempts must be made to interpret old laws as if they complied. If that is not possible reasons why must be given so that parliament can revise the old law.

Post a Comment

Lib Dem Voice welcomes comments from everyone but we ask you to be polite, to be on topic and to be who you say you are. You can read our comments policy in full here. Please respect it and all readers of the site.

If you are a member of the party, you can have the Lib Dem Logo appear next to your comments to show this. You must be registered for our forum and can then login on this public site with the same username and password.

To have your photo next to your comment please signup your email address with Gravatar.

Your email is never published. Required fields are marked *

*
*
Please complete the name of this site, Liberal Democrat ...?

Advert



Recent Comments

    No recent comment found.