Lessons from Sir Henry Brooke: Making Rights Real (II)

Jonathan Cooper - 1st March 2019

In my last post, I argued that the judgment in Gareth Lee v Ashers Bakery is the consequence of the failure to follow a structured human rights assessment. This is why.

Gareth Lee is gay and lives in Northern Ireland. Northern Ireland denies gay men and lesbians the right to marry. Gareth went to a protest lamenting the denial of equal marriage. He wanted to take a cake saying Support Gay Marriage with an image of Bert and Ernie from Sesame Street on it. Bert and Ernie have become gay icons. He went into Ashers Bakery on his local High St. They advertise a cake design service. He asked them to ice a cake. The owners of Ashers, the McArthurs, are Christians and their version of Christianity rejects the idea of same-sex marriage. They refuse to ice the cake. Gareth sues. The case ends up before the Supreme Court.

Giving the judgment for the Court, Baroness Hale rejected Gareth’s discrimination arguments. She held that the decision of the McArthurs not to ice the cake was because of the message on the cake. Anyone who wanted that cake’s message, gay or straight would have been denied. The finding of no discrimination by the Court was short-sighted, but Baroness Hale based her decision on her understanding of the current state of English law. Her approach was limited, but on that basis was, no doubt, not incorrect. She chose not to examine the case from the perspective of indirect discrimination.

Because the case occurred in Northern Ireland, as a matter of law, Baroness Hale was also required to assess the facts from the perspective of whether there was a violation of political opinion and/or religious belief. Instead of deciding the case as two competing aspects of political opinion, one informed by equality and the other by faith, Baroness Hale chose to examine whether it would violate the McArthurs’ right to religious belief to be required to ice the cake requested by Gareth.

Baroness Hale located her decision in Article 9 of the European Convention of Human Rights. Her analysis did not follow the structured approach proposed by Brooke LJ in Begum, as I discussed in my previous post. Had she, could she have come to the conclusion that she did that the McArthurs’ right to manifest their religion in their High Street bakery entitled them to deny service to Gareth under the circumstances? She did not even attempt the most rudimentary of Article 9 structured assessments. Whether the McArthurs are manifesting their beliefs or merely motivated by them was not asked. In this context that question should have been asked. If the McArthurs decision not to ice the cake was only motivated by their faith, Article 9 is not engaged. Nor does Baroness Hale ask questions relating to legality. What was the legal basis for the McArthurs decision to reject the order?

Most troubling is that there is no proportionality exercise. There isn’t even an attempt to assess whether the actions of the McArthurs were necessary in a democratic society. What was the pressing social need? Where was the rigorous proportionality exercise? Gareth is a member of one of the most vulnerable groups in Northern Ireland. Gay men have a recent history of persecution by the authorities there. LGBT people are still denied equality. By refusing to ice the gay cake, the McArthurs were upholding the status quo in Northern Ireland. Baroness Hale should have addressed those power imbalances. If she had, would she have come to the same conclusion? Instead she relied upon on a UK Supreme Court decision relating to asylum seekers from Zimbabwe who refused to swear an oath of allegiance to President Mugabe. She cites this case as justification for why a baker can deny Gareth a cake advocating equality, affirming the human right to marry.

The Asher judgment in the Supreme Court vindicates Brooke LJ’s approach in the Court of Appeal in Begum. I respectfully disagree with Lord Hoffman in Begum. Ultimately, human rights are there to provide procedural safeguards. It is by following a structured approach that they provide those safeguards. It is those procedural safeguards that guarantee the rights. They impose an objectivity that the subject matter of disputes – faith, privacy, expression etc – do not possess. That is why human rights work and how they become practical and meaningful.

Had Baroness Hale applied a structured approach to the Ashers case, she would have had to come to a different conclusion. Now we are left with a judgment that leaves the High Street an unsafe place for LGBT people and a decision of the Supreme Court that has also distorted the status of faith in law. We are already seeing the consequences. Recently, a Jewish nursery fired a valued teacher because she wouldn’t lie about living with her boyfriend. Relying on Ashers, the EAT held that the nursery acted lawfully, as covered by the Oxford Human Rights Hub blog here.

In the longer term Ashers will be distinguished out of existence, but before then there will be too many martyrs like Gareth and the primary school teacher who will be bashed by the faith of others. The hope is in years to come a future Supreme Court will look back on Brooke LJ in Begum and revive the culture of rights he knew we needed.

Author profile

Jonathan Cooper OBE is a barrister at Doughty Street Chambers.

Citations

Jonathan Cooper OBE, ‘Lessons from Sir Henry Brooke: Making Rights Real (II)’ (OxHRH Blog, 1 March 2019) <http://ohrh.law.ox.ac.uk/lessons-from-sir-henry-brooke-making-rights-real-ii> [date of access].

Comments

  1. Christopher Whitmey says:

    I ‘m not a lawyer. In your previous post you said, “Brooke LJ in that case held that the school uniform policy of Denbigh High School was unlawful under the Human Rights Act because, relying on that policy, the school did not adequately take into account Shabina Begum’s right to manifest her belief. ”
    Please can you explain in lay terms, why Shabina Begum should NOT have been required to behave against her religious beliefs, but you feel McArthurs SHOULD have been required to behave against theirs?
    There are plenty of bakeries who ice cakes.

  2. Christopher Whitmey says:

    Thank you Jonathan, for your private reply. Posting it here as it may help other non-lawyers. But with many bakeries we may well differ on the outcome of a proportionality exercise.

    It’s all down to proportionality, Christopher, and the requirement to carry out an effective human rights review.

    Brooke LJ wasn’t saying that Ms Begum shd be allowed to wear her religious dress. He pointed out that the school uniform policy had failed properly to take into account her concerns in relation to manifesting her faith. She was not allowed to dress according to her faith. Brooke LJ argued that there needed to be a rigorous proportionality exercise in relation to how that policy affected Ms Begum.

    In Ashers there was no meaningful proportionality exercise at any stage in the process. Had there been it would be unlikely that the McArthurs actions would have been proportionate.

    I endorse Brooke LJ’s requirement for an effective review. The House of Lords/Supreme Court in Begum watered down the potential of human rights protection.

    Kind regards

    Jonathan

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