...free to think freely


12th October 2018

Half-baked confusion rejected

Reading the Supreme Court judgement in the Asher’s Bakery case, my first reaction was how difficult it would be to argue at that level as a litigant in person. The case, though appearing quite simple from a Diverse Diversity viewpoint, was extremely complicated at the level of current legislation. Not only was there the question of how various legal rights should be understood and balanced within the substance of the case itself, but over that there was the issue of whether the matter could be referred to the court at all, since in Northern Irish law the local appeal court’s decisions are normally considered final.

The Supreme Court judgement was highly critical of the Appeal Court, both in terms of procedure and the facts of the case, and it is clear the lower court’s failure to recognise what should have been obvious: that disagreeing with someone is not unlawful discrimination, that refusing to support someone’s cause is not persecution, that conscience cannot be compelled and that refusing to oppose the law as it currently stands cannot, logically, be an unlawful act had caused a fair degree of irritation to their Lordships.

In reaching their unanimous verdict the Court was careful to avoid many of the pitfalls of which those who oppose its decision accuse it. By drawing a careful distinction between a person’s political position and their nature they made it quite clear they would oppose any discrimination based on the latter, but that could not permit people’s conscientious position being denied them. Pseudo-liberals seem to ignore or deny that basic distinction as they seek to use defending the weak as a tool to compel conformance from those who oppose them. They continue to do that as they continue to condemn the Supreme Court.

What I find more worrying, is that the lower courts in this case failed to make that distinction. Surely, this case should never have reached the Supreme Court, given the simplicity of the defence offered at County and Appeal Court level. The bakery refused to print a slogan with which it disagreed. It did not refuse the customer service on any other grounds. Alleging that refusing to accept an order for controversial material for a political campaign amounted to discrimination was clearly distorting the facts. A case should not have to reach the Supreme Court before a judge notices such an obvious distortion. Most of us cannot take a case to such a level and to think we won’t find justice unless we can is somewhat alarming.

This is an example of the complexity which arises when anti-discrimination legislation is based on identifying categories and according special protections to them, rather than simply requiring fair treatment for all. Without the smoke-screen of the protected category (so-called sexual orientation) it would have been obvious the grounds on which the order was rejected were not unjustified; it was refused because the producer did not agree with the content of the message they were being asked to produce. They were effectively being recruited into a campaign they did not support and that caused them conscientious problems. Such compelled recruitment is contrary to the principles of Diverse Diversity and also, it is refreshing to discover from this case, against the International Convention on Human Rights.

That is not to say the bakery could not have handled the situation better. They seem to have been disturbingly unprepared for an obvious hazard; that a customer given free rein in choosing content to be iced onto a cake might choose something controversial or offensive to the proprietors or to others. One would expect them to have a policy to deal with that possibility and to be able to implement it at the point of order rather than accepting the order and then cancelling it later. What if a customer wanted a message inciting crime, sectarian hatred, or libellous? Should messages be of a private nature only, or subject to approval by management before an order could be accepted? Some terms and conditions should apply. That might have saved a lot of trouble, as the order could have been rejected at the time on clear grounds, and not later on an embarrassing and delicate matter. The bakery’s owners were entitled to their conscience, but not to mislead the customer when they had no intention of fulfilling the order.