Qualms about Asher’s Law but none over the gay marriage referendum: spot the difference

Forgive me if I take a new post to reply to Mick on Asher’s Law.  I think he stretches the point about law and politics too widely. Let’s unpick this a bit. The sexual orientations order was passed under direct rule, by Peter Hain, not the Assembly. That makes it no less law. But it was one of those measures foisted on our politicians to try to force them to do the deal on restoring the Assembly. The message was, if you don’t like these progressive laws, re-form the Assembly and pass you own laws.

The UK Human Rights Act 1998 is basic law for NI and is embedded in the GFA. It incorporates the European Convention on Human Rights ( ECHR) into UK law and allows  appeals to the European Court of Human  (E  Ct HR) at Strasbourg.  No new British Bill would be likely to remove any human rights but in a basic form would remove the right of appeal to Strasbourg embedded in the NI Act 1998 and the international treaty that is the GFA. The GFA binds governments but not the sovereign parliament. In theory . That’s the immediate issue. In practice, it’s inconceivable that the right of appeal to Strasbourg will be removed, at least for NI and Scotland.

There is indeed a theoretical dispute over whether a Bill of Rights should extend social and economic rights which supporters of a “ political” constitution  believe is more the business of politicians. This is why the proposal for a Northern Ireland Bill of Rights is in deadlock. Put crudely, unionists believe the above while nationalists and supporters of a “ legal “ constitution  distrust legislatures which have a unionist or British conservative majority. They would prefer as many rights as possible to be enshrined in our law which is already replete with anti- discriminatory legislation.

Equality is the ultimate relativist position at rest and is value free until context is supplied.  I utterly  support the Yes side in tomorrow’s referendum although  I have a sneaking sympathy  for those who wish to retain the word “ marriage “ for a hetero couple.  Like many decisions, legal or otherwise this is a decision  to be taken on balance, because enough people want it. The oppression has been lifted already. But it’s a heartening fact that more and more societies – even ours – are recognising sexual equality.

In law however, particular examples matter. Rightly  the law restrains  the blind application of principle. Like winner- take- all majority rule for example. Remember that one anywhere?

Does equality work in every individual case where no harm can be demonstrated such as not labelling a cake?   Must an all-male or an all- female club admit the opposite sex?  And what happens to freedom of speech and conscience where no harm can be shown?

Although  I recoil every time  at  the moralism of our wee Ulster, I agree that the Ashers ruling has gone too far and has exposed the drawbacks of equality legislation. The state looks oppressive by the Equality Commission’s support for the case. They should have restricted their role to expressing an opinion.  I understand but do not  share Patrick Corrigan’s elation. Overall though, the architecture of human rights and equality  that in this case seems  burdensome provides essential protection for people of all opinions. Just think what it was like, and where we’d be now, without it . We can afford  to have a go against Asher’s ruling.

That noted libertarian Simon Jenkins has made a swingeing attack on it and on our political culture in the Guardian. I don’t agree with every single word but by drawing on outside examples he makes a powerful case.  His message: The moral of the gay wedding cake row: the law can’t create tolerance.

A Christian walks into a Muslim sign writer’s shop and orders a placard. He says it should carry a cartoon of the prophet and the slogan Muslims Go Home. The sign writer is deeply offended and says he cannot execute the order. The customer is outraged at the discrimination, is supported by the equality commission, sues, and the sign writer is fined £500 plus costs.

I think most people would find such a saga absurd. Why did the Christian not acknowledge a difference of opinion and go elsewhere for his placard? Yet that is the gist of the case this week against Mr and Mrs McArthur, owners of Ashers Baking Company in Belfast.

The judge took the view that the refusal to write the slogan was direct discrimination against Lee’s sexual orientation. The McArthurs denied this, retorting that they sell cakes to many gay people; it was the slogan that neither they nor their staff could write. They would have felt the same had Lee been heterosexual. The judge chose to disagree, saying in effect that their action was no different from a restaurant refusing to serve a black person. To my mind, a better parallel would be the Catholic Herald refusing to publish an anti-Catholic tirade.

That gay marriage is still illegal in Northern Ireland is a grim comment on Britain’s long and incompetent custodianship of Ulster’s government. It lacked the guts to unite the liberal values of a so-called united kingdom. I therefore sympathise with those determined to keep up the pressure.

The slights, sometimes petty, sometimes cruel, that afflict any community cannot be regulated by the law. The crooked timber of mankind cannot be straightened at the crack of a legal whip. Most English people who get to know Northern Ireland tend to be charmed by it yet shocked at its ongoing factionalism. Homophobia, religious prejudice and creationism are still endemic. Muir has called for “respectful dialogue and commitment” on gay marriage, yet he welcomed the ruling against the McArthurs. It will surely just exacerbate the province’s divisions.

Having failed to bring greater religious tolerance to Northern Ireland, the British government hopes to expunge its negligence by enforcing change through the pettier applications of the law. That is not the sensible way. Bringing this case was a mistake. The law can be right, but it can still be an ass.







Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London