Legal implications if the Equality Commission wins gay cake case

The Belfast Telegraph have another article on the long running gay cake saga. They have obtained the legal opinion procured by the Christian Institute (as indeed have the Daily Telegraph) from a leading human rights barrister: Martix Chambers’ Aidan O’Neill QC.

From the Daily Telegraph:

Mr O’Neill argued that the Commission’s case ignores human rights protections and said the bakery’s case was based on the same principles as Sir Thomas More’s refusal recognise Henry VIII to be the Supreme Head of the Church in England.
“Their refusal to endorse this opinion – to protect their negative freedom of expression – has resulted in the State, in the form of the Equality Commission for Northern Ireland, funding court action against them which seeks to stigmatise as unlawful and render unactionable the defendants’ religious beliefs and political opinions,” he wrote.

From the Belfast Telegraph:

“If the approach of the Equality Commission for Northern Ireland were correctly based in law (which I do not consider it to be) then on the basis that the law does not protect the fundamental right — within the commercial context of supplying services — to hold opinions nor guarantee any negative freedom of expression, there would be no defence to similar actions being taken against individuals or companies supplying services in any of the following scenarios which have been presented to me:
• A Muslim printer refusing a contract requiring the printing of cartoons of the Prophet Mohammed;
• An atheist web designer refusing to design a website presenting as scientific fact the claim that God made the world in six days;
• A Christian film company refusing to produce a “feminist/female-gaze” erotic film;
• A Christian baker refusing to take an order to make a cake celebrating Satanism;
• A T-shirt company owned by lesbians declining to print T-shirts with a message describing gay marriage as an “abomination”;
• A printing company run by Roman Catholics declining an order to produce adverts calling for abortion on demand to be legalised.

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  • PeterBrown

    Your argument is accurate but you have not necessarily undermined the accuracy of the opinion merely my making that argument…

  • PeterBrown
  • Makhno

    So, do you propose an ‘anything goes’ scenario in terms of goods and services, based on what these disparate groups make of a magic book, Zeno? This is a recipe for disaster.

    People are, of course, entitled to their opinions. Anti-racist legislation does not compel racists to be friends with, or entertain in their homes, any group or individual who they find ‘abhorrent’. What it does compel them to do is to offer services goods etc to all groups, regardless of their views on them. The same should apply to all the groups of ‘chosen ones’ to whom their god is seemingly giving a bespoke message – all from the one book. In other words, they should behave themselves and keep their judgemental beliefs at home.

    I don’t understand why ‘they’ ( I presume you mean gay and lesbian people) want relationships rubber stamped either, but thousand of people seek this every year, gay, straight, bible thumpers and all. There are many people who want to go to football matches every week. Personally I’d rather stick pins in my eyes, but would not ban it just because I don’t like it. This is the main thrust from many Christian and other religious groups who are getting exercised about gay rights issues, and I think it’s high time that their beliefs were restricted to legitimate campaigning and private fulmination.

  • hugh mccloy

    Have you ever been in these courts? these secret courts that can violate human rights, make judgement on a balance of probabilities where a judge does not need to test the evidence ?

    Those courts absolutely shred children rights, a child has a right to family life, these courts remove it be it contact, residence or care case.

    Over 4000 contact cases a year now in the courts, the children’s order is the pre text to a multi million pound industry where the children are the traded commodity. They are essential a pay day for the legal industry.

    Its only now that Stormont are looking at contact cases, and not for the welfare of children, because they cant to save money on social care and legal aid.

    Childrens order written in 1995 and ongoing never gave a child a right of social contact with its father, and that is not what stormont want to change, they still want the judicial system to keep the ££ rolling in.

    Children will still be stopped from seeing their fathers as the law wont chage and the child cant bring their own case to court, guardian ad litum is useless so dad will have to cough up.

  • carl marks

    And for all the words you have typed you have not in anyway proved he is right.
    The judge will decide the rights and wrong of the case.
    However I thinkthe ” my god if we do this everybody will be at it” argument ,which is what this is. Has been used to argue against equality to no effect for a long time.

  • SeaanUiNeill

    Peter, “we’d probably be better waiting for the judgment!”

    Indeed, and let us hope that the decision does not serve to erode hard won legislation against discrimination to the detriment of the rights of all!!!

    All of this is simply, as Brendan Behan wrote “a case of sentiment”, as Asher’s have effectively admitted their discrimination through their use of conscience as a justification.

  • SeaanUiNeill

    Indeed, carl. It is certainly not being made clear that this is simply a barristers opinion, not an authoritative and exhaustive analysis of all factors in the situation. For me, the tendency to misdirect actual events involving actual people, what the case must be decided upon, into hypothetical speculations such as “the straight guy ordering the cake” red herring is a particularly confusing clouding of the waters.

    However, much as I abhor this tendency to generalise, I do feel that the possibility of any erosion of laws to prevent discrimination must open the way for much wider interpretation, especially in a community with the particular history we are cursed with.

  • PeterBrown

    In relation to proving him right I have not supported the opinion anywhere on this thread but I certainly haven’t attacked it merey on the basis of who commissioned it ignoring the barristers professional obligation for it to be balanced. Nor for the umpteenth time have I wilfully ignored the fact that the customer is the key to this whole scenario for it is the customer as an individual who has to be discriminated against under the legislation being applied here. But this does not suit certain contributors point of view so apparently the telescope is being passed around so that everyone can have a turn at putting it to their blind eye so that they can’t see the ships either……

  • PeterBrown

    What no comment on this CM or is your mouth full of that large portion of humble pie you have just been served?

  • SeaanUiNeill

    I’m becoming confused, Peter, have you ever participated or even watched what actually occurs in a real court case? Proving that their client is not culpable in regard to a charge is exactly what the defence team are engaged to do ( to show that they are not “guilty”). Asher’s motive for refusal will almost certainly be significant, for how else will their conscience defence be explained? Simply because you have personally analysed away some significant factors in what actually occurred, it does not mean that they will not play a part in the argument in court. What is relevant and what is irrelevant will be up to the judge to rule!

  • PeterBrown

    Nor should it expand the law into an area the law does not, should not and arguably cannot cover – once again you have accused Ashers of discrimination without going on to state who they discriminated against and on what grounds they treated them less favourably, a serious charge but no evidence to support it.

  • SeaanUiNeill

    Indeed, the customer is the key to the entire situation, and the refusal of his order on grounds of conscience. How do you interpret this conscience defence, if not as discrimination as this is currently defined in law?

  • Zeno

    “What it does compel them to do is to offer services goods etc to all groups, regardless of their views on them. ”

    Again. Ashers refused to make a product. They would refuse to make that product for anyone. That is not discrimination.

  • Zeno

    “How do you interpret this conscience defence, if not as discrimination as this is currently defined in law?”

    It can’t be discrimination. They would refuse to bake that cake for anyone. Discrimination requires a group or person to be treated differently to the rest of society. In this case they were not.
    So if you take discrimination out of the equation, what are we left with?
    A business can not refuse to manufacture a political statement that they disagree with? Eh?

  • PeterBrown

    Sean this year I will have been a lawyer for 20 years and although I have some experience of discrimination law I don’t claim to be an expert but let me set out the fundamentals you are clearly either ignorant of or since I have pointed them out numerous times on this thread are now wilfully ignoring.

    The relevant legislation is designed to prevent less favourable treatment (discrimination) of the customer on the relevant grounds but in this case the customer was not treated less favourably because they were gay (which is why the heterosexual customer is not a red herring it is actually fundamental to the case) but because of the cake. The issues then are is the slogan a religious belief (probably not as there are Christians who support gay marriage and non Christians who do not) which only leaves political opinion. If as has been argued it is because it is capable of being legislated upon then no order could be refused because every order could be dealt with by legislation hence the opinion.

    The defence team only become relevant if the other side who go first prove there was discrimination and are irrelevant if as I am submitting here there was not and conscience in the absence of a conscience clause will not be their defence.

    Hopefully you can now see that I do indeed understand what happens in a legal case (as it happens I am waiting to adjudicate on a case in which I am the “judge” not actually a lawyer representing a client at this very minute) and also that I have removed the log in your eye whilst you were pointing out the non existent splinter in mine…..

  • carl marks

    Of course to make sense of those figures there are some more facts we need
    Firstly do you have any figures on the breakdown of religion and quilifacations of. applicants. Does the percentage of Catholics employed equal the perceñtage of Catholics applied?
    How does the breakdown of experience and quilafaction match religious affiliation,
    Can’t really judge anything until we have all the facts, but on a observation . knowing how much unionists hate the EC and the amount of lawyers and barrister s inside th3 unionist parties it is hard to believe that if your claims are correct that. Unionists havnt taken it to court.

  • PeterBrown

    See below for the detailed explanation of why this is the wrong end of the stick…..

  • Reader

    SeaanUiNeill: As with everyone else who comes into direct contact with the general public, Ashers are required in offering their public service not to act in discriminatory manner in providing that service.
    I get the impression from some of your remarks that you used to be in advertising. Are there commissions you would have refused to take on because they conflicted with your political beliefs (Fur, tobacco, landmines, blood diamonds, censorship, Jihad) or would you always take the money?

  • PeterBrown

    These are the facts and if your best defence is because all Protestant / unionist lawyers are members of a political parties and are deliberately not applying I’m tempted to ask for a link for that completely ridiculous assertion. The fact of the matter is they are not applying because it is a cold house.

  • PeterBrown

    Now now Zeno please don’t point out the uncomfortable facts otherwise CM might have to have another portion of humble pie and Sean might actually start having to stick to what is relevant to the case although both these scenarios seem unlikely….

  • carl marks

    Really cold house eh. Again why has no one taken them to court for what you claim. Simple really your claims are nothing without proof. And I suspect that if your points where true then it would have got to court by now.
    So tell you what give us all the information (as I said before percentage of applicants re religion and qualifications of applicant’s)

  • carl marks

    Lot of bluster there not a lot of facts. Tell you what if you have a case take them to court or go to your great leader and ask him why
    The DUP is permitting this

  • carl marks

    Where did i say “all lawyers are in unionist parties” i said there are many lawyers in unionist parties and the fact that none have taken the EC to court for this means either that there is no case or they don’t care?

  • carl marks

    Read above reply. Don’t eat humble pie when I’m right!
    Still waiting for some actual proof rather than mopery.
    But i can tell you something for if any government body behaved towards nation!its as you claim the EC is behaving towards nationlists then it would have benn sorted a long time ago by our politicians or they would be looking for new jobs.
    Like I say your either in error or very badly served by your politicians.

  • Pete

    Exactly right, Zeno.

    Reading people’s comments on this thread baffles me. Your point is very obvious, and blatantly correct, and still people attempt to dispute it.

    This was not discrimination.

  • Pete

    They didn’t discriminate against the customer. Any other customer requesting the same product would have been treated in the same way.

  • PeterBrown

    “when challenged on it could not give any actual figures, from your post it would seem that you have some facts now care to share them with us.
    or are you just making it up same as last time!”
    The claim about the composition of the EC is not as you state here made up – now open wide time for some humble pie.

    By the way what legal challenge should be being brought to this composition? Is there a problem with this composition and what difference does the applicants make? Like the PSNI analogy above surely the problem is that they are either not applying or not being appointed or a combination of the two and this problem needs rectified not analysed and the courts cannot rectify this – the same way they cannot rectify the refusal to put a particular slogan on a cake!

  • PeterBrown

    Pete there are none so blind as those who do not want to see!

  • PeterBrown
  • An offensive message to the Ashers, but not under the law.

    Whilst there is not legal provision for gay marriage within Northern Ireland, I’d like to think a Northern Ireland judge would not deem the promotion of it as legally offensive (unlike, say, beastiality which is more universally held in offence).

    Thus, if you are a business open for public custom, you don’t get to pick and choose your offensive prohibitions.

  • SeaanUiNeill

    Pete, so many people seem to have got this particular red herring fixed in their minds as some kind of get out of Jail Free card for Ashers. But this is not how law works. The person accused of discrimination has not refused service to an abstraction or a hypothetical other person, or even to (as has been implied) to a cake! One person or some corporate body acts in what is (arguably) a discriminatory manner to another person or corporate body at a given time and place. That is the substance of the action. Anything else being argued here is a hypothetical case that may perhaps be argued theoretically but is not the actual event that is going to law in this situation.

    Ashers clearly refused a particular customer service, and it is the nature of their motive in refusing service that forms the substance of (possible) discrimination. The given fact they they have stated that they refused on an issue of “conscience” implies to me that their reason for refusal was aimed at either the particular persons sexual orientation or, perhaps, their “political opinions” as PeterBrown has argued. Either way is is almost certainly covered by the relevant equality legislation. But remember, what is being considered is what actually happened to a person, not some theoretic situation.

    The ECNI website states that “The law also covers individuals who are treated worse than others due to incorrect assumptions” so the actual sexual orientation of the person ordering does not effect the act of discrimination even should the person refusing be considered to have made incorrect assumptions about the political opinions or sexual orientation of the customer refused service. Perhaps you should read the material on the relevant ECNI page:

    http://www.equalityni.org/Individuals/I-have-a-problem-with-a-service/Sexual-orientation

  • PeterBrown

    Any business has the right to refuse custom provide to do so does not discriminate against the customer -see the examples above which are currently legal but would become illegal if this case is won. The judge is not adjudicating on whether it is offensive or not but on whether to refuse to produce the cake was discriminatory and the case should not be misrepresented as being about anything else. Are you seriously suggesting every business must fulfil every order?

  • SeaanUiNeill

    As someone so familiar with the courts, you must have come across how capriciously a judge may actually decide to interpret point of law in any action with even a smidgen of ambiguity is present. I certainly have experienced this, and have been compelled to challenge judgements in my professional life in media. Your expert opinion is certainly clearly stated (thank you!), but is arguably not the very last word on the situation and, to me, seems to make some assumptions favouring the service provider which I feel are seriously open to question.

    I cannot see why you should say that the customer was not treated less favourably than someone else! Obviously, the customer was refused service in a situation where the provider of the product ordered decided on grounds of conscience to refuse service while another provider not troubled by conscience on this issue might have simply carried out the order. The first service provider is clearly discriminating about what he will or will not provide to a given person, not to some hypothetical client, and the customer has suffered a refusal of service because of some personal issue of conscience on the part of the provider. Whether the refusal was made on grounds of sexual orientation or political belief, both are equality discriminatory as I understand the situation. The provider’s motivation remains a key issue in deciding whether or not they were acting in a discriminatory manner.

    As Ashers had not at any time before the event defined any limitation of design on the their decorated cake service, their capricious refusal of this particular customer’s order means that they were clearly not providing him with their service “in the same manner and on the same terms as are normal in his case in relation to other members of the public.”

  • PeterBrown

    The customer was treated less favourably but the grounds for doing so (objection to gay marriage) has nothing to do with any of the grounds on which discrimination is illegal – they would have refused the same cake for a heterosexual Christian supporter of gay marriage leaving political opinion as the only remaining ground for the case to be won on and frankly it would take a very capricious judge to extend the definition of political opinion to include support for gay marriage….but it could happen and no matter what way the case is decided it is open to the loser to appeal to let another capricious judge have a look then potentially 3 more in the Court of Appeal and ultimately 5 more in the Supreme Court. Your quotation marks are presumably a dictionary definition of discrimination but the legal definition specifies limited grounds on which it is illegal – support for gay marriage is not specifically and in my opinion should not impliedly be one of them (something on which I suspect we may differ!)

  • barnshee

    Give us a clue– who do we refer the imbalance in the EQ to ?
    Where do we get their practices reviewed ?

    (If there is an imbalance in applications acros the “divide” does this not reflect on the EQ ?)

  • SeaanUiNeill

    Peter, the quote was from the 2006 Equality Act (Northern Ireland). I’d assumed this WAS the legal definition the Judge was going to be bound by.

    Indeed the decision, whatever it may be, will almost certainly be challenged. The desire of certain parts of the community to open the door to “legal discrimination” through a favourable judgement is simply too great to let any proper application of what the act should cover stand unchallenged.

    Now, having looked at the act some months back when this fracas first blew up, I’d still find your interpretation of the event as non-discriminatory bizarre in the light of what the act actually says. If a person seeking a service is treated in some manner differently to every other customer through either an accurate or inaccurate assumption of what their sexual orientation or political opinions may be, which is the clearly the case here, I’d feel that this entirely fits into what any reasonable person would interpret the act as covering. If the only motive for refusal was a simple political differing of opinion, then I doubt if the “Christian conscience” issue would have been raised so early in the day by Ashers. Until they were given some sensible legal advice, it appears that Ashers were almost admitting discrimination in claiming this issue of conscience. This cat is now well out of the bag and fingerposts their motive pretty clearly. All the rest seems to be simply sophistry to me!

    As you say above, we are unlikely to find any agreement on this, and should perhaps stop repeating our counter-points on the issue simply for the sake of answering detail, but thank you for clearly and honestly stating what I still believe to be a somewhat one sided “take” on the issues. While I do not agree on your interpretations I genuinely value the effort you’ve been making to convince me (and of course all the others).

  • Makhno

    That’s a bit like saying “I’ll serve white people, be they Christian, Muslim or atheist”. There’s still a glaring refusal…

  • Pete

    I don’t think much of your post is accurate at all.

    Ashers refused due to the message on the cake, nothing to do with the customer. It really is obvious. It was a matter of conscience to them, as they oppose gay marriage. Still has nothing to do with the political opinion or orientation of the customer; Ashers wouldn’t even have known the customer’s opinion or sexuality.

  • SeaanUiNeill

    If I believed in the product ~I certainly took the money, and did the very best work I could!

    No-one ever offered me the marketing of any of these products, so the actual case did not arise, although all of them certainly have marketing work developed to sell them. I’ve never run into anyone working on land mines or blood diamonds, but back in the seventies I had friends working on cigarette advertising. Does it help if they were smokers? On a few memorable occasions I did walk out of meetings but that was when the client was starting to be abusive to myself or to those whose work I fully respected and chose to back against the client. Bye and bye, I was paid in full.

    I know of one agency who took work during the Thatcherite privatisations and did a very post modernist play using subconscious suggestion in their work, to represent take up on these share issues as greedy and monsterous. There is certainly more than one way of making a point…..

  • carl marks

    Your great leader is off course peter , he runs the two largest unionist parties and is first minister, inside his own Party and the one that mike administers for him there is a veritable flock of legal eagles and like many unionists he Hates the EC with a passion.

    Now if indeed as you claim the EC did discrimate against protestants do you really think that a man of his experience and resources would miss a chance take swipe at the EC both politically and legally, think of the kudos he would garner from blooding the nose of a dispised for.
    So peter is either missing a opportunity or he knows that the EC does not discriminate against protestants.
    But I could be wrong why don’t you drop him a email and ask him why he is letting the EC away with discrimination against protestants and don’t forget to include all your “evidence”

    And for your information pointing out a imbalance in a workforce is not proof of discrimination. Reasons for imbalance can vary greatly. From the demographics of applicant’s to geographical location and of course qualifications of the applicants.
    Of course discrimination can also be a factor but the problem here that in your eagerness to attack the EC you jump to the conclusions that suit you ,

  • carl marks

    Why don’t you ask wee Jim , he is a barrister and hates the EC and a very smart man he will. Know how to sort them. Don’t forget to bring all your damping evidence.

  • SeaanUiNeill

    They refused a customer whose order they had already accepted. People are refused service, the issue covered by legislation, not cakes!!!!!!!

    While they may not have known anything about the customer (except perhaps “that he wanted a cake with a gay marriage message?”) they could have come to their decision to refuse custom through “reasonable inference” about who and what he was. Even if their inference was incorrect it was still discriminatory.

    The refusal to accept an order for any cake with the message is very much a latecomer to the issues here. Ashers stated early on that they they refused the order on grounds of “Christian conscience”, which is almost as good as saying on grounds of discrimination, for how else would you interpret this first line of defence but as a refusal to serve someone offending their conscience by implicating them in gay issues?

    As I’d said, look at the digest of the legislation on the ECNI pages and you’ll perhaps find out just how much of a red herring this hypothetical “straight Christian customer for a Gay marriage cake” actually is!

  • carl marks

    Oh dear I replied to our friend Bronze in some depth about this check it out.
    And seriously you don’t know what difference either the percentage of applicants who are protestant or catholic and their qualifications makemake to the balance of a workforce ! That’s hard to believe!

  • PeterBrown

    It cannot be reasonably inferred from a cake supporting gay marriage that the customer is gay as there are straight people who support gay marriage and gay people who do not (as stated elsewhere on this thread and accepted by any lawyer I have discussed this case with) – that is the fundamental hole in your case you are continuing to ignore Sean. In England the case was that the gay couple were married and the fact they were both the same gender, standing in front of the B&B owners and in a civil partnership meant it was clear the customer was gay. Is it any clearer now?

  • PeterBrown

    It is irrelevant – either they are not appointing Protestants who apply or they are not attracting applications from Protestants – either way they are a cold house and given that they have accepted as stated elsewhere on this thread that they required affirmative action to try (unsuccessfully to date) to rectify the situation I’m surprised you are less critical of this situation than they are themselves!

  • PeterBrown

    In one sentence the customer has been treated less favourably here but not because they were gay but because of the product they ordered which would not have been supplied to a straight person or Christian either so that less favourable treatment can only be discrimination based on political opinion not sexual orientation or religious belief.

  • carl marks

    So we have backed down from discrimination to “cold house” and thy are adresing the problem. This cold house you claim, now that would imply that theEC is a place were protestants are not welcome and I doubt that very much.
    Perhaps the hosttilty towards the EC by many unionists is what dissuades suitably qualified protestants from applying or perhaps the religious breakdown of the EC reflects the religious breakdown of suitably qualified people available .
    If indeed the EC is tackling the problem it might help to encourage young protestants to apply for employment if unionists stopped treating it like a tool of Satan.

  • PeterBrown

    Who alleged discrimination CM? You wouldn’t be making that up again the very false accusation you made against BE352 would you? Lying twice on one thread now that really would be stupid! Admirable but unsuccessful attempt to divert attention from the fact that you were the one caught lying. If it is not a cold house then why do they not apply / are they not appointed – the only set of facts there are point to a cold house provide a link that shows otherwise! Sean would surely see the cold house allegation as a reasonable inference ;-p

  • “See the examples above…” If I understand you correctly, then yes, I am seriously suggesting every business must provide the same service to all customers (unless to do so would be vulgar, defamatory or offensive under existing law, e.g. pornography).

    Replace the adjectives above with “white” and “black” and the absurdness is revealed. If it is a service available to all the public, then personal characteristics of ownership is irrelevant.

    If you want to limit your services, then don’t open to the public. Go business-to-business or tender for your custom instead.

  • Pete

    Yes, the person was refused service because the shop didn’t want to make that cake.

    If I went into a cake shop, and demanded that they sell me a product that they didn’t want to make, then I haven’t been “discriminated against”, the shop simply doesn’t offer the product that I desire.

    Ashers does not make “support gay marriage” cakes. It does not provide that product. Nobody can buy such a product there.

    You are saying that Ashers refused service because of the customer’s sexuality or political opinion. You have absolutely no way to prove that. All we know is that Ashers wasn’t happy to produce a cake saying “support gay marriage”.

    How is the equality commission (or yourself) going to prove that Ashers refused service due to the political opinion or sexuality of the customer? It can’t. There is no such evidence. For your viewpoint to be correct, you’d need some proof that Ashers didn’t sell them the cake due to their sexuality or political belief.

    You state, “Ashers stated early on that they they refused the order on grounds of “Christian conscience”, which is almost as good as saying on grounds of discrimination”. But that is absolute nonsense. It doesn’t imply discrimination at all. It says that they don’t support gay marriage, so didn’t want to make a cake with a slogan supporting it. Again, that has absolutely nothing to do with the customer in question. Had he wanted a plain cake, he’d have been provided with one.

    Sorry, but it really confuses me how you can’t understand such a simple point.

  • PeterBrown

    Goodbye to the female only gym, Man Utd supporters clubs, male voice choirs etc then if the state is going to police the personal preferences of all organisations (and good luck resourcing the policing of this!)

  • barnshee

    In the dim and distant past 1/3 of RUC posts were reserved for Roman Catholics (-pre “troubles” by the way) They never met the target

    Those with long memories and experience of the then RUC will recall that they were not overly endowed with intellectual ability “A”levels were a rarity and graduates non existent.

  • SeaanUiNeill

    Pete, Pete, the shop offered a service where they made up cakes to the customers own design. It was certainly not a matter of him walking in of the street and asking for a service the shop did not offer. The design order was actually accepted by the shop at first, and then referred to the senior management who refused to fulfil the order on grounds of “conscience”. The motive for refusal was clearly discrimination in my book, and also apparently in a great number of other people’s estimation. This is why a legal action is in hand.

    The customer who placed the order was refused a service that was available to the general public, and the only issue here is why, after the order had been accepted, being obviously within the design remit at public contact level in the shop, he was then refused the service at a later point. If this was because what he required was unacceptable to senior management, then if their motive was discriminatory, they are culpable. The issue is not who they would have served or not in other circumstances, but why that particular customer’s order was refused on that day.

    The “proof” is in the refusal itself of one person’s order, in a situation where the service was available to the rest of the general public. When Ashers mentioned “Christian Conscience” as their grounds of refusal, they as good as admitted prejudice, because their motivation was flagged as a singling out of their rejection of homosexuality for religious reasons as the reason for refusal. Simply because their motive was inspired by their understanding of the Bible, it does not mean that it was not discriminatory!

  • barnshee

    Don`t need “evidence” just have to point to the stats. I am sure the EQ will spring into action to redress the balance that`s the
    precedent surely?

    (PS the next up will be HMRC they are currently refusing an FOI on staff makeup in NI)

  • Pete

    Right, so you think it’s OK for a shop to refuse a cake promoting bestiality, but not OK to refuse a cake promoting gay marriage?

    So you actually agree in principle with what Ashers have done, you just have a different viewpoint on what is offensive and what isn’t offensive.

    Now, whilst of course bestiality and homosexuality are not comparable, each person has their own definition of morality. For you (and indeed, pretty much every person on the planet), bestiality is unacceptable. For a strongly religious person, homosexual marriage may be unacceptable (I am not religious, and have no problem with homosexuality, but I understand that other people have different views).

    I would have thought that a business should be allowed to choose what products it does or does not sell. If Ashers are found guilty in this case, it really would open the floodgates for a lot of ridiculous cases, in my opinion.

    For example, I would argue that it would be incredibly unfair to force a bakery owned by a gay couple to produce a cake saying “Save Ulster from sodomy”, but if Ashers are guilty, using your logic, the gay couple couldn’t refuse. If that is your viewpoint and you are consistent in it, then fair enough I guess, but it’s one that I disagree with.

  • carl marks

    “Don`t need “evidence” well that much is obvious because you don’t have any,
    go away and find some “evidence” because you need it.

  • Your list consists wholly of membership-based organisations, which are covered under different legislation. FWIW I would defend any voluntary association to base its membership on voluntary affiliations, ie. all those you listed.

  • carl marks

    Well both you and bronze suggested discrimination and quoted the religious breakdown of the EC to attempt to prove your point,
    Now that’s is your hysterical claim of lie number one taken care off , now if you could be a bit more specific about your claim of me lying to bronze then I can correct you on it as well, however I do hope for your sake you have better proof of that than you had agaiAnd again we are back to the cold house thing, do you ever actually read posts before you reply to them.
    n your eagerness to attack the EC you ignore one very obvious reason which could be a major contributor as to why only one third of its workforce is protestant , and that would be the hostility displayed by many unionists towards the EC.
    Oh and feel free to do the decent thing and apologise for your little lie rant ( seems to be a common reaction among some unionists on this site when confronted with obvious weakness in their arguments) but I won’t hold my breath!

  • PeterBrown

    No-one even mentioned discrimination – BE352 referred to their employee profile and you hysterically (both emotionally and now in the humorous sense of the word because you have been caught out again) accused him of making it up (it would seem that you have some facts now care to share them with us.
    or are you just making it up same as last time! to be precise) when the facts were available on their own website! So two lies – that BE352 had made it up when in fact the facts were and are available and that the Equality Commission was accused of discrimination when it was not – who owes who an apology? Of course the fact that the Equality Commission is 1/3 protestant is themmuns fault for not being nicer to it – funny how that argument deemed seem to hold any water in reverse for the RUC as has already been pointed out (and those attacks were of an entirely more serious and often fatal nature!

  • PeterBrown

    Not necessarily all membership organisations but what about the male barber / female only hairdresser or male / female grooming – there are examples you just don’t want to deal with the obvious exceptions to your rule…

  • WindsorRocker

    Product not customer folks, product not customer.

  • Reader

    Your final example is sort of like making the cake with unstable icing and contaminated ingredients.
    On the main point, you have never faced the issue faced by Ashers’ bakery. So will you revisit the question as a hypothetical one please? Suppose you were offered work that you found objectionable on political grounds – do you think you would have either a moral or legal right to refuse to accept the commission?

  • Okay we’re back to service providers (not associations).

    You can discriminate against “protected characteristics”, but on grounds of proportionate risk, health and safety: http://www.equalityhumanrights.com/private-and-public-sector-guidance/guidance-all/protected-characteristics

    For example, if you advertise yourself as an Afro-Carribean barber, then yes you can restrict your service to that hairstyle, but you must offer it to all.

    So, if you provide floral arrangements, you must provide them to all.

    If you’d bake a Bert & Ernie cake for any customer, you have to bake one for all.

    If you’d never bake such a cake — because it’s sacreligious, say — then you could likely defend yourself on your “protected characteristic” of a religious service provider.

  • PeterBrown

    16 hours of silence and tumbleweed later CM is awfully quiet – facts can be awfully inconvenient sometimes can’t they?

  • PeterBrown

    Allan that is not what the link says and frankly is at best a gross over simplification and at worst is inaccurate summary of the law. I’m not sure where the last paragraph is from but surely it is the Ashers case in a nutshell and with the opposite outcome to what you have advocated when you repeat what the Chief Commissioner stated in his Guardian interview – put up or shut up shop!

  • carl marks

    So sorry for not getting back to you quicker, but its the weekend and I have a life,
    Now when you claim that EC is not do,ng enough to attract protestants and is a cold house for them, 5hen you are accusing them of discrimation . that’s it facts may be awfully inconvenient sometimes but since all we gave had from you is a very selective fact with could be the result on any single or m more likely a combination of reasons you (with typical mopery) claim tthiis solely the result of anti protestant bias (normally the word the rest of the English speaking world has for this is discrimination) , I do hope that is not to complicated for you.
    Now you accused me of lying to bronzes and I asked to show me where I did this again it seems you can’t back up any of your claims.
    Now its Sat night and like I said I have a life and save yourself a bit of embarrassment and if I don’t reply to you right away hold the tumbleweed remarks.

  • carl marks

    Come on lads weekend take the blinkers off get out of the bunkers and have a pint . do you both good!

  • PeterBrown

    The failure to address an imbalance in its workforce is not an allegation of discrimination CM ironically we were criticising it for not discriminating in order to rectify the problem like the PSNI so its actually the opposite of what you claim! Though 10 out of 10 for clutching at straws and 11 out of 10 for ignoring the fact that Bronze stated there were issues with EC’s “employment profile” you accused him of making it up and presented with the facts including admissions from EC that there is an issue but apparently you are still right – nice one maybe you should be the lawyer not me!

  • carl marks

    Let be accurate here, ( I realise you are trying to get out of the hole, but you did dig it) you acussed the EC of either not employing prod and being a cold house for them, that is a accusation of discrimation ( if you do not understand that then should you be commenting on thread about legal matters) sorry but that is the way things work.
    I did not as you claimed “it was all themmuns fault” i said that such a imbalance can be the result of a combination of factors and one of them could (and i suspect is) the hostility of unionists to the EC which would discourage young protestants from applying, i also stated that the breakdown of the pool of potential applicants ( strange that you cannot seem to understand this simple fact) could also contribute to the imbalance.
    Also let’s us try to be accurate, I asked both you and bronze to prove your points, both you failed as your only proof was a norrow interpretation of the only “fact” he could find, he like you failed in supplying any real proof.
    So still all waiting for proof on the whole liar thing.

  • SeaanUiNeill

    Oh, I’d have been very careful to check out the legal angle before I left myself open to what I was doing. I would certainly not have spoken of “conscience” if it left me open to legal action for discrimination, being all too aware of how quickly a good lawyer can “fix” these things to have you publically crucified.

    But then the situations are so very different in practice. Ashers offered a design your own cake service to one and all, where usually a company wanting advertising offers to accept marketing suggestions for their new product from a number of agencies, who simply do not prepare an expensive and time consuming pitch for the limited amount of money the client offers if they do not want the work. In situations where perhaps millions of pounds are in the kitty for the sucessful pitch, there is no problem getting takers.

    A similar case would be the customer putting the making of the cake out to tender with about seven or eight cake shops with a few pounds in the kitty for each to show what they would do.

  • SeaanUiNeill

    So the product was personally affronted and went to the ECNI. It was the customer whose order was turned down. Discrimination happens to individuals, not inanimate objects.

  • Reader

    So you are still unwilling to hypothesise? Have you never had a case where a company has approached you(rs) directly because they had seen the quality of your work and wanted to employ you?
    Even within the limitations of your answer, I think I detect from your first paragraph that you feel you have a moral right to refuse work, and you have suddenly become unsure of your legal obligation to accept it.

  • SeaanUiNeill

    Reader, Reader, the reason I’m unwilling to hypothesise is that virtually all the comments on this issue have used hypothetical cases to muddy the waters and defend the indefensible (at least in law).

    The legal action will not be decided on any hypothetical situation but from actual events that occurred to an actual customer, refused service by an actual retailer in real time. This is how law works, arguing from events or precedents that can be described in sworn evidence. Everything else is to a greater or lesser degree a red herring as it distracts from the chain of cause and effect, and final motive which will be what this will be decided on.

    So the very best I can do for you on the hypothetical front is to say that as a profoundly liberal person without a discriminatory bone in my body (note my “tongue in cheek”), I would never find myself in the situation that Ashers have found themselves in as, after a few mistakes early in my career(s), I’m too canny, I hope, to expose myself in such a foolish manner as they have done. I certainly do not think that anyone offering an open service to the general public should pick and choose which members of the general public they will serve. If you check out Equality law, that behaviour is what is called “discrimination.” Hard as it may seem, their option is to either carefully restrict terms of service in future after some very serious legal advice on how to frame such terms of service, or to simply offer set product to the public, rather than a hostage to fortune such as an undefined service to decorate cakes to the customer’s own design!

    The real issue here is obscured under a claim of Freedom of Conscience for Ashers which is actually a kind of Trojan horse. If this “conscience” issue permits the likes of Ashers to select their customers in a “service to the general public” situation, then fifty years of slow building civil rights in this place are entirely destabilised. The capricious use of the Petition of Concern at Stormont shows just how far things intended to do good for a minority can be abusively stretched. If Ashers are successful and are permitted to discriminate legally then it is the thin end of a very broad wedge with very seriously unforeseen consequences for personal freedom and equality in law for us all that will make all of this a storm in a teacup.

    For your first point, yes, people now approach me with commissions for paintings where they may tell me what they expect to some degree, but the reason they approach me is for a very specific kind of painting. Unlike Asher’s I am not offering the general public but a “bespoke service” to recommended customers, like one of those old fashioned tailors I was sent to from the age of 12, back in the dim and distant middle years of the previous century.

  • PeterBrown

    Sean no customer was treated less favourably on any of the protected grounds + no discrimination, it was the product the bakery objected to not the customer…

  • PeterBrown

    CM

    Not let me be accurate and I’ll actually use quotations where appropriate

    1. Bronze states “Well, knowing the EC’s employee profile, in my kinder moments I think the Commission only took the case as an opportunity to meet some Prods.”

    That is an allegation that there is an imbalance in the composition of their workforce but it is not as you then claim an allegation of discrimination. Discrimination as this thread has proved numerous times a much misunderstood concept but in its simplest form someone less favourably than someone else for a particular reason which is not justifiable. But as you yourself have subsequently pointed out mere imbalance in a workforce can arise sons other than discrimination so the mere allegation that a workforce is imbalanced does not as you claim equate to a claim that the employer has discriminated. If we had claimed discrimination then applicants details etc would be relevant of a measurable and recorded workforce imbalance they are not.

    2 Your response to this post was “you mentioned this employee profile before and when challenged on it could not give any actual figures, from your post it would seem that you have some facts now care to share them with us.
    or are you just making it up same as last time!”

    In this you acknowledge that this is a claim about employee profile not discrimination and specifically allege that Bronze is making the allegation about the EC’s imbalanced employee profile up

    3 I provide the figures and in response to your request the link which then leads us to the request for the additional information about applicants which would only be relevant to a claim of discrimination – neither Bronze nor I use that word only you as what we are alleging is something which is not discrimination but for which the EC is also responsible. it is not something which can be taken to court and therefore your requests that we do so are to use your own term “bluster”.
    As is “Now when you claim that EC is not do,ng enough to attract protestants and is a cold house for them, 5hen you are accusing them of discrimation (sic) ” because that is not what they are being accused of that is at best mistaken and at what disingenuous bordering on another lie. However whilst there may be some mileage in the lack of protestant applicants point you make that is actually part of the problem that BE352 and I are pointing out – why would / does the EC not attract protestant employees or even protestant applicants If it were a private employer ironically the EC would have required all sorts of changes and would have expected those changes to be producing significant results but instead e problem has got significantly worse – in 2003 the figures were 39.1% protestant and 60.9% roman catholic, are protestants leaving the EC because of unionist attacks on it? Or is there something else going on?
    So there is proof of the two lies – that BE352 had fabricated the EC’s imbalance has been conclusively rebutted, as has the allegation that we accused them of discrimination – in fact only you used that term….is there anything else I can help you with? How are you enjoying yet another large portion of humble pie?

  • PeterBrown

    As per below there is no legal challenge available for an imbalanced workforce (assuming you now accept that there is an imbalanced workforce of course). You just have to work closely with the relevant statutory body to improve things and if your figures actually get worse well then…now if only I could remember who the Equality Commission would have to call in to get some advice or maybe even something with more teeth than mere advice to sort this problem out – surely there is something out there for exactly this situation?

  • SeaanUiNeill

    Look Peter, I know you want to define what occurred in very particular terms, but as someone professionally engaged in the law you will know that a strong case can clearly be made for other interpretations. The sentence we closed our last exchange on was from the 2006 Equality legislation, and anyone here taking the trouble to read this carefully would soon become aware that the experience of the individual is the key to reaching any definitive interpretation.

    I certainly realize how your argument works, but only at the expense of generalizing what is an event that occurred to a person ay a particular time, and for particular reasons, first described as “Christian conscience.” It is obvious that the person deciding to reject the order at Ashers did not wish to become implicated in an incitement to what they thought of as an immoral action. Most of the civilized world now considers gay marriage to be perfectly normal, accordingly refusing “any person” on these grounds would be a discriminatory action.

    What the law actually states is:

    “It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services —

    a) by refusing or deliberately omitting to provide him with any of them; or

    b) by refusing or deliberately omitting to provide him with goods, facilities or services of the same quality, in the same manner and on the same terms as are normal in his case in relation to other members of the public or (where the person seeking belongs to a section of the public) to other members of that section.”

    I see that for your arguement hinges on the issue of “goods…or services of the same quality.” You are arguing that anyone ordering that particular cake would have been treated similarly. But that was not what occurred, it was ordered by a particular person who, in any common sense interpretation, suffered discrimination under the terms mentioned in the act. Until this particular refusal of service evidently any member of the public approaching Ashers to place an order for any cake design could have expected to be served. The service offered was of cakes made to the customer’s design, with no specified constraint on any design mentioned. Accordingly, refusal of service in this case was an instance of “omitting to provide the customer with goods facilities or services of the same quality,” motivated by a concern on the part of the person making the decision at Ashers to avoid being implicated in incitement to what they possibly considered to be an immoral action. Any common sense interpretation of this event, and any understanding of Asher’s first stated reason for refusal of service implies a motive of discrimination on their part, both in the dictionary and in the legal sense.

    While I agree that anyone ordering that particular cake design, which clearly flagged either a sexual preference or agreement with
    a sexual preference, would probably have been denied service, I would contend that any such customer would still have been discriminated against in this, even if the person refusing the order was incorrect in his assumptions about them, and this kind of discrimination is covered in the act. They would clearly not have been treated “in the same manner and on the same terms as are normal in his case in relation to other members of the public” who were free to order any cake design of their choosing. In this they were being treated in your terms “less favourably”, and certainly the customer’s perception of the refusal was that it was an issue of sexual preference, his perception of such a refusal as “creating an intimidating, hostile, degrading, humiliating or offensive environment” for the customer, is in itself an issue that is protected.

  • PeterBrown

    They were refused the service and treated less favourably but not on the basis of their sexual preference or indeed any other protected ground.

    Refusal of service does not automatically mean there has been discrimination and cases are decided on their own specific facts. I am not relying on the similar goods section – that is the you can have a different but similar cake actually being provided defence.

    What I am pointing out is that for it to be discriminatory under these regulations the refusal has to be on the grounds of the customer’s “sex (including gender reassignment and pregnancy/maternity), disability, race, religious belief or political opinion, and sexual orientation” and their support for gay marriage and a refusal to bake the cake as a result is not covered by any of these.

    Your assumption that support for gay marriage equates to being homosexual (at least for the purposes of this legislation) is a key plank to your case and because some homosexual people do not support it and some heterosexual people do this is not this is not an assumption that the court can make. If it was a cake for a gay wedding / civil partnership then that would be reasonable but not with a gay supporting gay marriage….

  • SeaanUiNeill

    You are ignoring the fact that the customer’s perception of their treatment as demeaning them and as treatment singling them out from how others are treated is itself a “protected” matter. It is their actual treatment, and the motive of the representative of Ashers driving their refusal of service, that is at issue, not a broad situation that may be evaluated on general principals. As I’ve said above, a person, not a cake, perceives an action of another as discriminatory.

    I do not have to assume that support for gay marriage equates with homosexuality, I’m a strong supporter and am not myself gay! All that is actually needed here is the assumption, rightly or wrongly, on the part of the person refusing service that the customer was gay, and that this influenced their refusal. Some early reactions on Asher’s part, presumably before serious legal advice, tend to indicate this. You are emphasising one thread of understanding and excluding several others in order to present, as anyone would, a strong case for what you think to be the accurate interpretation, but as I’ve said above, yours is only one possible interpretation……..

    We could argue until the cows come home, it will be how these issues are argued in court that matters! And, as you say above, then the entire dreary round of appeal begins……..

  • PeterBrown

    No the customer’s perception is irrelevant and that is your fundamental mistake. Someone is not discriminated against because they believe themselves to have been treated less favourably because of their sex (including gender reassignment and pregnancy/maternity), disability, race, religious belief or political opinion, and sexual orientation – they actually have to have been treated less favourably because of one or more of those things.

    It is like almost every legal test objective not subjective otherwise every single unsuccessful job applicant could claim their failure was the result of their sex, disability, race, religious belief or political opinion, and sexual orientation and claim damages. Those damages are only payable if that actually was the motive not because they simply weren’t as good as the successful candidate who happens to have a different sex, disability, race, religious belief or political opinion, and sexual orientation from them!

  • SeaanUiNeill

    The perception of the customer, Peter, is specifically mentioned in section 3 part 4 of the 2006 act. “Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) or paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.” B here being the customer. The customer’s perception of their treatment as demeaning is certainly considered as part of the evidence, not the entirety of course, and as I’m reading this, subject to other evidence, but is still a part and not an irrelevance.

    And, as I’ve pointed out on other postings here, the motive of the person refusing will be key to the decision made, something the responsible person at Ashers had themselves flagged as implicitly discriminatory at an early stage.

  • PeterBrown

    And only if it is
    reasonable, which for the reasons I have set out above in this case it is not –
    this perception relates to 3(a) which reads “a) on
    grounds of sexual orientation, A treats B less favourably than he treats or
    would treat other persons;” and it cannot be shown that the grounds for this refusal (the less favourable treatment) was the sexual orientation of the customer not only because this was not known to the person who actually refused the order but more importantly the criteria was support for gay marriage to which sexual orientation is irrelevant….Asher’s conscience is to use your words a red herring

  • SeaanUiNeill

    We will have to differ on this. I think I’ve presented enough for anyone examining this as an all round issue to make up their own mind, especially if they take the trouble to read the actual legislation. The actual thing at issue is, as the legislation says, the effect, which was refusal of service. The reason for refusal of service is probably the thing that this will hinge on, and I feel that Ashers have given a very strong fingerpost to their reason for refusal early on.

    Every point you have raised with such unshakable certainty can be challenged from issues mentioned in the legislation, and challenged, in the interests of civil society and to avoid the institutionalisation of licensed prejudice, I would hope successfully.

  • carl marks

    ill eat humble pie when you serve some!
    Now again without any data on the breakdown of applicants all your post is really just verbiage.
    again your proof of both of my “lies” is your ( and remember your not to fond of the EC) opinion of what one isolated fact means.
    Now you accuse a company of being responsible for being a cold house for protestants now I will repeat for the last time, in the English language that is called discrimination.
    so I think we are finished here! you feel free to rant away .

  • PeterBrown

    The employee profile data which you accused BE352 of making up is abundantly clear from the EC’s own website the applicant data is irrelevant when all that was being claimed was an issue with the employee profile.

    there is more wriggle room for you in the second point about cold house=discrimination, I would dispute that it is discrimination in either the English language and in particular the legal sense of the word, but the fact remains BE352 did not “make it up” that there are issues with EC’s employee profile. That was undeniably a lie!

  • carl marks

    first ,try and read what I said instead of going off on one,
    now get a napkin I have pie for you!
    I didn’t accuse him (bronze) of making anything up, I accused both of you of jumping to a wrong conclusion over data you produced,
    Any place which is a “cold house” for any group is discriminating against that group because deliberately or not it has a culture or ethos which that group would feel uneasy inside.
    that is discrimmation, you imply without all (or even most ) of the fact that the imbalance in the EC is the fault of the EC without looking at possible other reasons.
    would you like some cream with your pie?

  • PeterBrown

    What you said in relation to the first allegation was

    “you mentioned this employee profile before and when challenged on it could not give any actual figures, from your post it would seem that you have some facts now care to share them with us.
    or are you just making it up same as last time!”

    I’m not sure how you square the circle that you did not accuse BE352 of making anything up when your post includes the statement (not evn the question) that he made it up and the last time and is therefore presumably making it up again. The facts (your own words) speak for themselves.

    In relation to the second for the umpteenth time an organisation can (and in this case does) have an imbalance without necessarily actually discriminating for reasons you yourself set out – a cold house does not equate to discrimination (for example the GAA is a cold house without discriminating) and I would (and did not) accuse the Equlaity Commission of discrimination but of failing to redress the imbalance which as I pointed out is getting worse. Contrary to what you believe there is not legal action which can be taken about such an imbalance – it is actually a statutory duty of the employer and Equlaity Commission (in this case one and the same) to try to do so and in this case it clearly isn’t working. But that does not as you seem to think inevitably involve discrimination which has to be active and deliberate not as you believe passive.

    I’ll slide that pie right back across the table to you – and at least when I do so it has a substantial side order of facts…..

  • jm

    Afraid not!!!! Correct verdict today from judge.

  • SeaanUiNeill

    I’m glad that the Judge has come to the proper conclusion despite the obvious “coaching” of those on the Ashers side to present their case in a sophistic manners that contradicted their first statements.

    We are all a little safer in our freedoms from this.