A missing layer of the cake with the controversial icing – Hugh Collins

Last October, the President of the Supreme Court, Lady Hale, gave a lecture in the University of Oxford on the topic of ‘Equality and Human Rights’. After her eloquent and pellucid lecture, Lady Hale agreed to take a few questions from the large and appreciative audience. Following a few polite queries that produced thoughtful responses, a student at the back of the lecture theatre changed the tone of the occasion by asking why the legal reasoning of the Supreme Court in Lee v Ashers Baking Co Ltd was so weak. Conceding that, if the reasoning was poor, she had been responsible, Lady Hale nevertheless affirmed the correctness of the result. In a post-graduate class a few weeks later, I posed the question whether indeed the reasoning was poor. Though the class approved the outcome of the case, the question was raised whether some vital steps in the legal reasoning in the case had been omitted.

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The case was not concerned with employment, but rather a customer’s order from a bakery for a cake with a message supporting gay marriage. In the light of the findings of fact by the County Court,  the Supreme Court analysed the case as one where the bakery cancelled the order not because of the sexual orientation of the customer (or the association of the customer with members of the group with that protected characteristic), but because the shop did not want to be associated with the message on the cake in favour of gay marriage. Since heterosexuals ordering the same cake would also have been refused, the Supreme Court held that case did not raise an issue of discrimination on the ground of sexual orientation. Because the case took place in Northern Ireland, there was a second possible ground for a claim for discrimination under the Northern Ireland Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21), which permits claims for discrimination on the ground of political beliefs. Since gay marriage is a hotly contested political issue in Northern Ireland, the bakery and its owners could be accused of direct discrimination against the customer on the ground of political belief. It is possible that such a claim would be available elsewhere in the UK under the Equality Act 2010 by falling within the category in section 10 of discrimination on the ground of religion or philosophical belief. The Supreme Court held that, despite the possible direct discrimination against the customer by the bakery on the ground of political belief, its owners could nevertheless justify their conduct by relying on their own opposing beliefs, thereby avoiding liability for discrimination.

It is the application of a justification to avoid a finding of direct discrimination that is the especially novel feature of this decision. After all, it is often said with respect to the contrast between direct and indirect discrimination that (in the words of Lady Hale in R v Governing Body of JFS ([2010] 2 AC 728, [57]) ‘The main difference between them is that direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim…’ Leaving aside the special rules governing discrimination on grounds of disability and age, there is no general defence of justification for direct discrimination on the ground of protected characteristics such as sex and race. Nor was there a justification defence available for direct political discrimination in Northern Ireland. The introduction of a justification for direct discrimination by Lady Hale may therefore signal a significant development in discrimination law in general. Why is it legally and morally correct that there should be a justification defence available to rebut claims for direct discrimination when Parliament has not expressly created one?

The answer to the question of legality lies in section 3 of the Human Rights Act 1998 (HRA 1998).  According to that provision, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the rights contained in Schedule 1 that contains Convention rights drawn from the European Convention on Human Rights (ECHR). The Equality Act 2010 and other regulations concerning discrimination law are not exempt from that requirement. To the extent that an application of the law of direct discrimination might produce a judgment that is incompatible with a Convention right, either the legislation must be interpreted in such a way that compatibility is achieved, or the court should make a declaration of incompatibility of legislation under section 4 HRA 1998 or disapply subordinate legislation. Where a discrimination claim concerns indirect discrimination, compatibility is relatively straightforward to achieve, because it can be inserted into the justification element of the requirements for a successful claim. Where the defendant is exercising or protecting a Convention right, that conduct will certainly amount to the pursuit of a legitimate aim. The question in indirect discrimination cases becomes whether the defendant’s practice that has a disproportionate adverse impact on a protected group, but which also involves the enjoyment of a Convention right, is a proportionate means of exercising the relevant Convention right. In the absence of a general justification element, it is much harder to insert a justification in terms of the exercise of human rights by the defendant into the law of direct discrimination.

In Lee v Ashers, the bakery and its owners relied on their Convention rights to freedom of religion and freedom of expression, under articles 9 and 10 of the ECHR. Their legitimate aim, they claimed, was to uphold their sincerely held religious beliefs against gay marriage and their right not to publish or be associated with statements of which they strongly disapproved. The question therefore became whether the legislation prohibiting direct discrimination on the ground of political opinion could be interpreted in a way that ensured a proportionate respect for the Convention rights of the bakery and its owners. One route for doing so was to hold that there had been no discrimination against Mr Lee because of his political views, because it was the message on the cake rather than his political views that had motivated the defendants. Fortunately, the Supreme Court rejected this easy way out, because they recognised that the association between the message on the cake and Mr Lee’s political views was so close that they were indissoluble. The request for the cake perhaps might be likened to a case where someone had come into the shop waving a banner in favour of gay marriage and they had refused to serve the customer for that reason. In that hypothetical case, there would almost certainly be direct political discrimination, and the same reasoning had to apply to the order for a special political message on the cake.

The Supreme Court was therefore forced to interpret the legislation in a way that was compatible with the Convention rights, especially article 10 concerning freedom of expression. Precedents and good sense support the view that being forced to express views including political views that one finds abhorrent or offensive is an interference with freedom of expression. Similarly, the freedom not to manifest religious beliefs is protected under article 9. To hold that the bakery was liable for direct political discrimination when they were exercising this aspect of the right to freedom of expression and freedom of religion would create an incompatibility with the Convention rights. In applying section 3 HRA 1998, Lady Hale therefore concluded that discrimination legislation should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so (para 56).

And there, apart from a brief discussion of the tricky point about whether the same conclusion applied to the company as well as its owners, the judgment abruptly ends.  Yet there is more to be discussed and analysed.

For a start, in the light of this interpretation, what does the discrimination legislation now say? It seems fair to assume that if a justification defence to direct discrimination based on Convention rights is available to Northern Irish bakers, it should be available to other duty-bearers under discrimination legislation, including employers. Nor should the scope of the defence to direct discrimination be limited to one Convention right, article 10, for the reasoning based on section 3 HRA 1998 might apply to other Convention rights, such as freedom of religion and freedom of association. It seems, therefore, that section 13(1) of the Equality Act should now be read as if it said (adding the words in italics) ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others, unless that would require an unjustified interference with A’s convention rights.’ Although the Supreme Court cannot be criticised for not spelling out the full implications of the decision, they might have addressed the question of whether section 3 HRA 1998 could perform such heavy interpretive lifting. It is relatively straightforward to say, as in X v Y [2004] IRLR 625, that as a result of section 3 HRA 1998, the test of fairness in the law of unfair dismissal should include in its assessment whether the dismissal involved an interference with Convention rights, because the open textured standard of fairness and reasonableness can embrace all kinds of criteria. In relation to claims of direct discrimination in employment, however, unless a justification can be framed as a proportionate occupational requirement, the absence of a general justification element entails that section 3 HRA 1998 requires more radical surgery on the legislation in the form of the exception described above.

A more serious criticism of the decision is that it fails to address one crucial issue: whose right should prevail? As I explain in my essay, Justice for Foxes: Fundamental Rights and Justification of Indirect Discrimination (2018), such cases where the defendant relies on human rights inevitably raise the question of how to balance the competing rights. On the one hand, the applicant is entitled to be protected against discrimination on the basis of protected characteristics, for those rights ensure individual dignity and equal respect. On the other hand, defendants as private citizens have rights as well, so these competing rights have to be reconciled. In Bull and Bull v Hall and Preddy [2013] 1 WLR 3741, the Supreme Court had carried out such a balancing process. Having concluded by a majority that there had been direct discrimination on the ground of sexual orientation by a hotelkeeper refusing a double-bedded room to those in civil partnerships, unlike married couples, it was necessary to consider the justification of the hotelkeeper that its rules were a manifestation of its sincere religious beliefs under article 9 ECHR. That justification was rejected in part on the ground that Parliament had not provided for such a defence in the legislation, but also, crucially and more convincingly in my view, because the right of the applicants to respect for their sexual orientation is a core component of a person’s identity under article 8 ECHR. Lade Hale quoted the European Court of Human Rights to the effect that the Convention requires ‘very weighty reasons’ to justify discrimination on the ground of sexual orientation. Although the point was not spelled out in any detail, it was clear that the Supreme Court placed greater weight in this context on the article 8 right than on the defendant’s reliance on the right to manifest a religion.

Such a weighing up of the competing rights is absent from the reasoning in Lee v Ashers. A whole layer of the reasoning is missing. The principal competing rights here were concerned with freedom of expression. The customer wanted to express a message on a cake, and the baker wanted not to express that message or to be associated with it in any way. Other rights concerning manifestation of religion and respect for sexual orientation were part of the context as well. Why did the bakery’s right prevail? The Supreme Court does not explain. It does not seem inevitable that the right not to express a political opinion should be regarded as more important than the right to express one. To take a hypothetical case, suppose that an employer that is deeply committed to the monarchy takes objection to republican views of a senior, recently appointed, employee, Jeremy, who posts his criticisms of the royal family and the institution of the monarchy on social media outside working time. Because the employer finds that its name is being associated with these posts, Jeremy is told to shut up or leave. He resigns and claims direct discrimination on the ground of religion or philosophical belief. Assuming that Jeremy’s republicanism counts as a philosophical belief, a claim for direct discrimination is likely to be successful unless, by relying on s. 3 HRA 1998, the employer can justify its action as in pursuit of a legitimate aim of defending its right not to express a particular message and that the dismissal was a proportionate measure. It is unclear why the employer’s right should trump that of the employee in such a case. There might have been a more proportionate measure available, such as a press release dissociating the employer from Jeremy’s remarks. Alternatively, Jeremy might have been asked to make it clear in his posts that he was writing in a personal capacity. How the balance should be struck between the competing rights in this hypothetical case is far from obvious, but in applying the test of proportionality, the European Court of Human Rights has often observed, as in Vogt v Germany and  Pay v UK, that dismissal of an employee may have severe consequences such as loss of the right to work in a particular profession, a factor that needs to be considered in the balancing process. Similarly, the priority given by the Supreme Court in Lee v Ashers to the bakery’s right not to express a political opinion was neither obvious nor explicitly justified. Perhaps the answer lies in the fact that Mr Lee obtained his cake from another bakery without difficulty, but if so, the weight attached to the availability of that alternative source needs to be explained. In the light of Eweida v UK, the opportunity for Jeremy to obtain alternative employment is not likely to be regarded in itself as a sufficient reason to give priority to the rights of the employer, so the question arises why the availability of an alternative source for a cake in Lee v Ashers should tilt the balance in favour of the bakery.

Some may find it worrying from a moral point of view that it may be possible to justify direct discrimination at all. In my view, however, that moral objection is misconceived. It is important to understand that the moral structure of discrimination law usually involves the balancing of competing rights of private actors (except where a public authority is the defendant, when, as in Ladelle v UK, the authority must rely on the protection of the rights of third parties). The balance between the right-holders is often struck by the legislative exclusions from discrimination legislation. We protect individual freedom and autonomy by excluding many decisions from the scope of discrimination law, which is confined to certain kinds of duty-bearers (eg employers, landlords, shopkeepers), and certain kinds of economic activities (eg employment, education, accommodation, public functions etc.). A male employee can refuse a job offer from a company run by women on the ground that he dislikes being managed by women, and this sexism is outside the scope of the legislation because the rights of the parties have been weighed in favour of the autonomy of the individual job applicant. Where the legal duties apply, such as those imposed on employers with respect to employees, the balancing process becomes more refined, as for example through the narrow defence of a proportionate occupational requirement. In the context of direct discrimination, the UK legislation normally structures and short-circuits the legal balancing process between the competing rights. Yet that balancing process can resurface when individuals seek to challenge the way the legislation has reconciled the competing rights. Such cases may be rare, but their possibility is morally necessary and appropriate. Despite the truncated reasoning, Lee v Ashers is a milestone in the development of discrimination law, because it was the first case when a defendant succeeded in using s.3 HRA 1998 to justify an exception to the law of direct discrimination.

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About the author: Hugh Collins FBA is the Vinerian Professor of English Law at All Souls College, Oxford, and Co-editor of the UK Labour Law Blog.  His books include Labour Law Cambridge UP (with KD Ewing and A McColgan), Employment Law 2nd edn (OUP), and Foundations of Indirect Discrimination Law (ed with T Khaitan) (Hart Publishing).

 

(Suggested citation: H Collins, ‘A missing layer of the cake with the controversial icing’, UK Labour Law Blog, 4 March 2019, available at https://wordpress.com/view/uklabourlawblog.com)

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