Learie Constantine was a black Trinidadian cricketer, who went on to become Trinidad’s High Commissioner to the UK and the first black peer. In 1943 he arrived with his family at the Imperial Hotel in Russell Square. He was subsequently informed that he could only stay one night, because of complaints about his presence made by white American servicemen staying at the hotel. He sued for damages, and won.
Innkeepers are one of a group of trades called common callings (including farriers and attorneys) who are obliged to serve all those who present themselves. By refusing this service the Hotel wronged Constantine. Legally, the interesting point in the case is that damages of five guineas were payable despite the absence of proof of any consequential harm being suffered, as he had stayed at an alternative hotel.
Most trades are not “common callings” and there is no right to be served. So, a shop can, at common law, refuse to transact with me for no reason, or even a bad or discriminatory one. The Equality Act (Sexual Orientation) Regulations(Northern Ireland) 2006 (SI 2006/439) (“SOR”) and the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21))(“FETO”) alter this common law position. SOR prohibits discrimination in the provision of goods, facilities or services on grounds of sexual orientation, FETO on the grounds of religious belief or political opinion. Outside of the specific cases regulated by discrimination law, shop owners remain free to refuse to serve on the basis of bad or irrational reasons.
Mr Lee, a gay man, ordered a cake from Ashers Bakers in Belfast. The icing design he ordered included the Sesame Street characters ‘Bert and Ernie’, a logo for the campaign group QueerSpace and the headline “Support Gay Marriage”. The owners, having initially taken the order, declined to produce the cake on the basis that to do so would be inconsistent with their Christian beliefs, in particular their opposition to gay marriage. The Northern Ireland Court of Appeal held that this was a case of discrimination on the basis of sexual orientation, this was appealed to the Supreme Court who concluded that no actionable discrimination had occurred.
The court rejected the SOR claim on the basis that the objection of the bakers was not to who Mr Lee was, they had quite happily served him before and would not refuse a gay man a cake on that basis, but because of the message on the cake. If Mr Lee had been a straight campaigner for gay marriage the bakers would have refused to serve him on the same basis.
A slight change in the facts shows how narrow this ground is however. The cake in question had been ordered to mark the end of anti-homophobia week. What if a “Bert and Ernie” cake had been ordered by a gay couple to mark their wedding day? Could the bakers have refused to make it without falling foul of the SOR rule? There is no great demand among straight couples for wedding cakes themed in this way. How then could it have been said that bakers’ objection was merely “to the message, not the messenger?”
The route to ruling that there was no discrimination against Mr Lee on the basis of his political beliefs (here his support for gay marriage) was more difficult. Here the distinction between the political opinions of Mr Lee and the message he wished to convey was harder to draw. The only people who will be prejudiced by a refusal to produce cakes in support of gay marriage will be those who desire such cakes because of their support for gay marriage. Being prepared to offer them other kinds of cake is not really the point, anymore than the willingness of the proprietors of the Imperial Hotel to find Mr Constantine a different hotel.
Freedom of Speech
It was here that the Supreme Court relied upon s 3(1) of the Human Rights Act, which requires all legislation to be read so far as possible as compatible with the European Convention on Human Rights. Here the relevant rights were freedom of conscience and religion (article 9) and freedom of expression (article 10). Here the court found that requiring the bakers to express a message that they profoundly disagreed with would be a violation of the Convention, so that FETO should be read narrowly so as to not cover this case (although what the correct ‘reading’ of FETO is is somewhat obscure).
Here I have considerable sympathy with the NI Court of Appeal’s opinion that the baker was not being compelled to express anything at all. The message was that of Mr Lee. Nobody thinks that a baker endorses the messages placed on cakes. “I love you Mum” or “Manchester United Forever” appearing on cakes are not thought to be the statements of the baker himself. This is not like the case of the Muslim petty officer forced to doff his cap during Christian prayers. which involves an outward show of personal belief.
It may be objected that the baker was publishing the information, in much the same way as a printer publishes a newspaper. The printer may commit an actionable libel even where the author of the statement is another.
However. it may be doubted whether the concept of ‘freedom of expression’ is intended to be this broad. Its role is to allow a free market in ideas, however abhorrent. People should neither be prevented from expressing, or required to express, beliefs they do not hold. It may be doubted whether this is what was being required of the bakers, whom nobody considers to be the authors of the message on their cakes.
The intuitive problem with SOR and FETO, and why the court may be tempted to read them narrowly is that they require us to confer benefits upon other people. The law does not generally, and should not, require us to be good. If I wish to withhold a benefit from you, such as my particular skill in making a chocolate cake, I should be free to do so if I wish for good, bad or no reason at all. Or so the reasoning goes. The law should be reluctant to require you to confer a benefit upon me when this is in conflict with your sincerely held beliefs. Like Mr Constantine, beyond the sense of insult and affront, there is no harm to the individual consequent upon the discrimination because of the ability to obtain the goods or services elsewhere (monopoly suppliers requiring more regulation than those operating in a market with ready alternatives available).
Should shopkeepers be required to trade with those who support Brexit if they do not wish to do so, if we are not going to require them to trade with everyone who seeks their custom, as we do with innkeepers? The justification for doing so is a difficult one, and so it may be wise for a court to side on the basis of freedom outside of the clear cut case.