Cakes and ale

by Mark Hammond

Published: 28 May 2015

Two court cases in England and Northern Ireland in the last week have brought into focus again the issues around race and religion. Two private companies were each found to have discriminated unlawfully against individuals because of their protected characteristics: Wetherspoons (in refusing entry to a group of Travellers) and Ashers bakery, in turning down an order for a cake supporting gay marriage.

There has been a lot of comment and reaction. Indeed I took a few minutes to read the public comments in one of our tabloids which made interesting reading.  Opinion was mixed, but people raised many of the right questions. Should private businesses be free to choose whom they serve?  When should religious beliefs be allowed to enter into the way people are served or given public services?  Are the courts creating a hierarchy of rights with religion at the bottom?

I think the two courts applied the law correctly. This doesn't mean the way the law works has yet been fully understood or indeed commands unanimous support. In the case of the pub, it is surely clear cut that if you open your doors to the public and offer to sell goods and services then every one of us can expect to be treated fairly when we come through your doors.  Not my race, not my gender nor my disability should mean you have the right not to serve me.

In the case of the cake, the issue was not just the identity of the customer but the nature of the message requested, and the complexity of the law both in relation to equality and to freedom of expression meant there perhaps appeared to be less certainty about the result.

Both cases say that the motive behind the discrimination is not the issue but the act of discrimination itself.  This is where the pub was mistaken in seeing something that may have happened in the past as a justification for discrimination today. And where the bakers are not being persecuted, where their rights as Christians are not being trampled on, it is not their belief which is on trial. It is the act of discrimination which appears on occasion to result from that belief.

We think it is important to be aware of the ways in which the operation of the law interacts with the manifestation of religious belief and to understand how it may impact on people in the future.  That is why the Commission has been looking at these laws over the past year, through a public call for evidence, dialogue with a wide range of people and organisations and a review of legal cases.  We will be publishing the final report at the end of the year.

The case for allowing people to ignore the laws on discrimination because their religious faith tells them to do so is not in our analysis a strong one.  This doesn't mean we are ignoring the issue.  We are keen to debate and engage with everyone on this to be sure that at the very least our conclusions have been informed by the widest range of views. The law needs to be understood as well as enforced.

With the proposal of new counter-terrorism laws which impact on freedom of expression, and proposals for changing the legal framework on human rights, we can be sure of one thing at least.  None of these issues are going away quickly.