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Of Cakes and Ale

Two recent cases have again brought to public attention, with the usual considered reflection for which on-line message boards are renowned, the issue of whether a supplier of services to the public may refuse to serve someone.
Of Cakes and Ale
The cases – both in the County Court, one from London and the other Belfast – concern refusing gypsies and travellers entry to a pub and refusing to supply a cake bearing the slogan “support gay marriage” that was contrary to the shop-owners’ religious convictions.

In perhaps the more straightforward case JD Wetherspoon was ordered to pay £24,000 in damages after HHJ Hand QC ruled that staff at The Coronet in Holloway Road had acted illegally when they denied entry to a group of people who had been attending a nearby conference organised by the Traveller Movement charity.  Lawyers for the Traveller Movement claimed that the group – which also included a police inspector, a barrister and a priest – were told by the doormen that the pub was “not allowing Travellers or people from the Traveller conference to enter”. The allegation was denied by Wetherspoons, but the judge held that the policy of the then pub manager had been “irrational” and that his thinking had been “suffused with the stereotypical assumption that Irish Travellers and English Gypsies cause disorder wherever they go”.

Concluding that the manager’s actions had amounted to “racial stereotyping”, the judge commented: “It can be reduced to this crude proposition: whenever Irish Travellers and English Gypsies go to public houses, violent disorder is inevitable because that is how they behave.”

JD Wetherspoon had apologised to the eight individuals who were denied entry to the Coronet for any “upset and distress” caused.

In Lee v Ashers Baking Company, following a 3-day hearing at Belfast County Court, District Judge Isobel Brownlie held on 19th May 2015 that a Christian-run bakery discriminated against a gay customer by refusing to make a cake with a pro-gay marriage slogan.  As a business, Ashers was found to have discriminated against Mr Lee on the grounds of sexual orientation as well as his political beliefs. The judge said she accepted that Ashers has "genuine and deeply held" religious views, but said the business was not above the law.

The case raised yet again the conflict between ECHR Article 9 (Freedom of thought, conscience and religion) and Article 14 (Prohibition of discrimination).  The latter states:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
NB.  There is no express reference to sexual orientation in Article 14, but quaere whether this can fall within the definitions “other opinion” or “other status”?

We have been here before in Bull and anor v Hall and anor [2013] UKSC 73; [2013] 1 WLR 3471 (reported as Preddy v Bull), where the appeal by a Christian couple running a hotel who refused to permit a male couple in a civil partnership to share a double bedroom was dismissed by the Supreme Court (all lower courts having found against them).  Baroness Hale outlined the history of the legislation as follows :
2. The general rule is that suppliers of goods and services are allowed to pick and choose their customers. They were first prohibited from discriminating against a would-be customer on grounds of sex, race or disability, by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. Although to some extent inspired by the European Union’s principle of equal treatment, some of this legislation went further than was then strictly required by EU law. Then came Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Its purpose was to “lay down a general framework for combatting discrimination on the further grounds of religion or belief, disability, age or sexual orientation, as regards employment and occupation” (article 1).  The United Kingdom implemented that Directive by amendments to the Disability Discrimination Act and by Regulations dealing with discrimination on grounds of religion or belief, age and sexual orientation in those fields (see the Employment Equality (Religion of Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006). 

3. That was as far as EU law required, and still requires, it to go. But Parliament then passed the Equality Act 2006. This established the Equality and Human Rights Commission (EHRC) and extended the prohibition of discrimination on grounds of religion or belief into, among other things, the provision of goods, facilities and services. It also permitted the Secretary of State to make regulations similarly extending the scope of the prohibition of discrimination on grounds of sexual orientation. The Equality Act (Sexual Orientation) Regulations 2007, with which this case is concerned, were the result. All of this legislation has since been replaced (for a case such as this) by the Equality Act 2010, but the principles, concepts and provisions with which we are concerned have remained much the same.

Although the legislation in Northern Ireland is different but similarly worded, the guiding principles can be found in the Equality Act 2010, section 4 of which identifies as “protected characteristics” : age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief;  sex; and sexual orientation.  Sections 9 and 12 go into greater detail about race and sexual orientation respectively, and section 29 deals with the provision of services to the public.  It forbids discrimination in the manner in which the service is provided (or not provided), harassment and victimisation.

Christian Concern, which backs Christians facing court cases over their beliefs, says that the judgment undermines religious freedom in Northern Ireland, while the Evangelical Alliance claims that this is a significant change in the law that will have wider implications and may even suggest that religion has been "effectively banished from the commercial sphere".

However, in what some may regard as the even more extreme case of Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales [2012] UKUT 395 (TCC);  [2013] 2 All ER 1114 Sales J upheld the decision of the General Regulatory Chamber of the First-tier Tribunal on appeal from the Charity Commission to refuse to allow a Catholic adoption agency to amend its memorandum of association to take advantage of a limited exemption for charities (now in section 193 of the 2010 Act) from the general law prohibiting discrimination on grounds of, inter alia, sexual orientation.  The charity refused to accept anyone other than “Nazarene families” of mother, father and child to apply to be adopters, thus directly discriminating against same sex couples in stable relationships.

The judge observed that notwithstanding the statements in the European authorities about the legitimacy and acceptability of views in favour of promoting traditional family life, it was also clear that even where a body acted in accordance with such views, if in doing so it discriminated against homosexuals it was still necessary for it to show that there were particularly convincing and weighty reasons justifying differential treatment. (see paragraph [48] of the judgment). The extent of the benefits to children and the likelihood that such benefits might be achieved were relevant considerations to be taken into account in determining whether weighty and convincing grounds had been established to justify the proposed discrimination against homosexuals.

Those in business must therefore take great care not to apply policies based on stereotypical ideas or prejudices, and those with deeply held religious convictions must remember to “render unto Caesar that which is Caesar’s” and in their dealings with fellow citizens try to separate their religious beliefs from their duty to treat all potential customers with equal consideration.

Graham Sinclair