The Ashers Bakery Judgement is a Mess

The Guardian reports that:

A bakery in Northern Ireland owned by evangelical Christians has lost an appeal to overturn a conviction that found it guilty of discrimination for refusing to bake a pro-gay-marriage themed cake.

The court of appeal in Belfast on Monday upheld a previous judgment last year that Ashers Bakery had discriminated against a customer on the grounds of sexual orientation.

The family-owned firm in the original case was also ordered to pay £500 compensation to the local gay rights activist Gareth Lee, whose legal action was backed by the Equality Commission for Northern Ireland.

Lee had tried to buy a cake depicting the Sesame Street characters Bert and Ernie below the motto ‘Support gay marriage’ for an event to mark International Day Against Homophobia in 2014.

In my opinion, this is a very poor judgement by the Court of Appeal.

Like the rest of the UK, Northern Ireland has legislation prohibiting businesses from discriminating against customers on grounds of sexuality, subject of course to certain exceptions. So had this been a cake for a coming out party or a same sex wedding then the bakery would have been obligated to make it or pay the fine. However, this cake carried a message advocating a change in the law and the bakery’s objection on the face of it is to participating in disseminating a political message they disapproved of. I would suggest that this is not by any sensible measure discrimination on the grounds of sexuality.

In their attempt to demonstrate otherwise the Court of Appeal argues that:

The benefit from the message or slogan on the cake could only accrue to gay or bisexual people.  The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”.  We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled.  The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientationThis was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community.  Accordingly this was direct discrimination.

But it seems to me that this is not as evident as the Court is making it out to be. Straight people can and do support equal marriage. And it is quite conceivable that one of these straight allies might wish to express their support in cake form. Indeed there seems to have been some debate in the initial trial about whether the Bakery actually knew that the person who placed the order was gay or not.

I, therefore, submit that the relevant comparison for deciding if there has been direct discrimination is not between two orders for cakes, one saying ‘support gay marriage’ and the other ‘support heterosexual marriage’. Rather it would be comparing two orders with the same message, one placed by someone who was themselves gay and one by a straight ally. It seems likely given the stated position of the owners of the bakery that both orders would have been rejected. The identity of the person placing the order was not critical and therefore this was not direct discrimination.

You might still conclude that there was indirect discrimination but, firstly, the Court was never asked to rule that there was, and secondly, a much wider latitude is given to businesses to claim that their indirect discrimination was justified. In this case that justification would have been Ashers Bakery’s right to freedom of speech and not to be discriminated against on the basis of their religion.

The Court addresses the issue of avoiding religious discrimination but in a deeply inadequate manner:

The legislation prohibits the provision of discriminatory services on the ground of sexual orientation.  The appellants are caught by the legislation because they are providing such discriminatory services.  Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because that person seeks to distinguish on a basis that is prohibited between those who will receive their service and those who will not. 

 The answer is not to have the legislation changed and thereby remove the equality protection concerned.  The answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service.  Thus the supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds.  In the present case the appellants might elect not to provide a service that involves any religious or political message.  What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation.

The upshot of this seems to be that a business that wished to avoid the potential requirement to produce any political or religious message, must preemptively decide to never produce a political or religious message.

That seems to require an unreasonable foresight on the part of small businesses. It also seems liable to restrict freedom of speech by inducing many potential channels for political or religious messages to shun them. And it leaves any business not taking that dramatic step in a vulnerable position. Will a gay baker be found liable for religious discrimination if they refused to make a cake with an anti-gay marriage message? How about if a printer refuses to produce leaflets saying ‘white power’, is that racial discrimination? Both those situations seem farcical and objectionable but is that because there’s a genuine legal difference between them and Ashers case? Or is it just because we find those theoretical plaintiffs less sympathetic?

That we may disagree with the people who own Ashers Bakery does not negate their rights. They have a legally protected rights to their religious beliefs and to the political convictions that follow from them. Those rights are breached by requiring them to participate in spreading a message that run counter to their own views or face a fine. As I’ve already intimated this is objectionable not only for the direct impact it has on Ashers but because it creates a potentially problematic precedent. I hope the Supreme Court overturns it.


In Northern Ireland, political discrimination is also outlawed. That makes the judgement somewhat more defensible.

However, it remains deeply problematic. For starters, direct discrimination on the grounds of sexuality is a course of action open across the UK. Therefore, the case can have implications beyond NI.

Even within Northern Ireland, this case does also seem rather removed from the original intention of the ban namely preventing sectarian discrimination. Given its potential implications for freedom of conscience and the success of the peace process, I wonder if the time hasn’t come to remove political views from the list of characteristics protected by equalities legislation.

What if Theresa May had lost her seat in 2005


“Hey, I’ve arrived at Twyford” I said into the first mobile phone I ever owned. This being 2005 it was, inevitably, a Nokia 3510. “Oh OK” came the reply from Simon, the Liberal Democrat organiser for Maidenhead constituency, followed by a pause. “But I thought we’d agreed to meet at Maidenhead station” he continued. “Oh shit, yes we did” I replied.

And so began my career as a Liberal Democrat activist. I did eventually get to Maidenhead and start knocking on doors and delivering leaflets. I was campaigning on behalf of Kathy Newbound, a popular local councillor in the traditional mould of Lib Dem community activists. The Party had a come a credible second in the seat in the 2001 General Election and had gained further ground in the local elections that followed.

And it was alluring for another reason: the MP our victory would unseat was high profile. At that point she was Shadow Secretary of State for Families but she had previously been the Chairman of the Conservative Party. In which role, she had made herself notorious for telling the Tories they were perceived as ‘the nasty party’. Despite that what most people knew her for was her flamboyant taste in footwear.

The Liberal Democrat effort to defeat Theresa May was part of what became known as the ‘decapitation strategy‘. It is remembered as an outright failure. Virtually all the senior Tories it targeted dug in and built up the personal votes in their constituencies. At the same time CCHQ employed some of the most sophisticated campaigning British politics had yet seen. For example, they used data purchased from marketing firms to find voters susceptible to messages about the further reaches of the Liberal Democrat manifesto. So owners of land rovers got direct mail about the Lib Dem plans for a tax on 4x4s. At a time when the Liberal Democrats still had to rely on dropping the same leaflet through every door on a street, this was devastating stuff. Michael Howard’s majority barely fell and remained well over 10,000. David Davis’ went from under 2,000 to over 5,000. And Theresa May’s basically doubled.

Nonetheless, the strategy was not quite a total failure. Shadow Education Secretary Tim Collins was defeated by one Tim Farron. So it’s not totally implausible that Mrs May might have lost her seat back in 2005. If that had happened how would Britain now be different?

We could ask if there are features of her tenure as Home Secretary that are unique to her as an individual and which another Conservative would not have replicated?

But the more interesting question is who would now be Prime Minister? Without the rocks of Mrs May’s childlessness to run aground on, would Andrea Leadsom have triumphed? Would the void have been filled by another Remain supporting cabinet minister? Would Gove or Johnson have been able to satisfy their palpable craving for the top job? Or would Mrs May simply have re-entered parliament in 2010 either for Maidenhead or another constituency, and then continued her path to the premiership?

Absent the final option, my read is that British politics would now be pretty different. Mrs May’s peculiar combination of having supported remain but not too loudly, having been in Mr Cameron’s cabinet but not being close to him, of being culturally aligned  with the Party’s grassroots and having a reputation for being tough on immigration allowed her to contain the divides within the Conservatives. I do not see anyone else with a similar combination and I suspect that without her the Party would now be fighting itself in a positively Labour like fashion.

Reflections on a by-election in Witney

This is essentially my ‘hot take’ on the Witney by-election. At time of writing it’s almost 10pm here in South Korea. So I’m prioritising speed over things like finding links to support my assertions, redrafting and proofreading. If that leads to problems, please point it out in the comments and I will try to rectify them.

1: The Liberal Democrats can go on the offensive again

The 2015 General Election showed the incumbency advantage enjoyed by Lib Dems to be hugely overrated. However, for the duration of the coalition it was basically all we had going for us. From 2010 onwards, all our attempts to break into new territory or appeal to new groups of voters floundered. We could only seriously compete in (some of) our existing seats.

That dynamic seems to have shifted. It must be a mathematical certainty that the bulk of people who voted Lib Dem yesterday didn’t do so in 2015. That supports the pattern that we’ve seen in a string of spectacular local council by-election wins.

It’s important not to get carried away here. What we are describing is mostly potential rather than actual. The Party still has basically the same poll ratings it had in our annus horribilis of 2015. And I’m not sure whether affluent rural and suburban remain voting Tory areas are a great platform for a broader resurgence. If Labour gets its act together we could still be stuffed. But at least for now our potential to decline exists alongside the tantalising possibility of growth.

Or put another way in the ecosystem that is British politics, the Liberal Democrats are now predators as well as prey.

2: It’s going to take a miracle to stop a Hard Brexit

The implosion of the Labour Party has turned Britain into a version of one of those American congressional districts gerrymandered to make it an impregnable Republican fortress that as a result has a really hardline congressman more worried about pleasing the handful of ideologues who vote in primaries than in the opinions of the broader electorate.

The events that followed the Brexit vote would not lead you to suspect that Leave had only squeaked a victory by less than the margin of error of a standard opinion poll. It seems that the only view the government seems interested in are those of the most ardent outers and it will do that by delivering a maximalist version of Brexit. This fact will doubtless distress the 48% who voted to remain and presumably at least some of the leavers who were told quite explicitly that they could ‘have their cake and eat it’. But broad swathes of the country being opposed to the direction the government is going in does not matter to Theresa May. As long as there is no credible threat to Conservative rule from another party, all she has to do to maintain her premiership is keep her own deeply eurosceptic party happy.

A win in Witney might have shaken that sense of invulnerability. I am, of course, not criticising anyone involved in the campaign for not securing that an outright victory. Getting to a strong second from basically nowhere is an incredible achievement that was at the very limits of what could realistically be achieved. But that’s kind of the point: we’re running out of plausible ways to prevent our country blundering out of the Single Market.

3: Cosmopolitanism is the opium of the elites?

The past few years have been taxing for the left-wing parties. A key reason for that is they’ve tended to rely on combining their traditional base amongst the unionised working class with strong support from middle class professionals. The increasing prominence of issues of culture and identity has frayed and in some cases broken this alignment because the two halves of it generally have very different views on the merits of an open society.

A commonly articulated response to this problem is that social democratic parties need to pursue a more resolutely left-wing economic agenda. This will supposedly increase the salience of the traditional left-right dichotomy and consequently downplay the problematic open-closed one.

I doubt this will work. I see little evidence that the working class voters who are the audience for this socialist sound and fury will fall for this misdirection. I find the notion that their cultural grievances are just sublimated economic anxiety unconvincing and I suspect they would find it a tad patronising. The Sanders and Corbyn movements have tried this approach and yet appear to draw the vast bulk of their support from the middle class left.

Rather than accentuating economic issues to appeal to a shrinking working class, it would probably be wiser to accentuate cultural ones and appeal to the growing populations of graduates and minorities. This is what seems to be the coalition that will allow the Democrats to win the White House for a third time in a row. It is the affluent suburbs of big cities where Clinton seems to be making the biggest gains against Trump. Witney is essentially what one of those areas looks like in a British context. The successes enjoyed first by Remain and then the Lib Dems in the seat indicate that achieving something similar in British politics is not impossible.

So perhaps the trick to making left-wing politics work in the 21st century is using social liberalism to get wealthy professionals to vote against their short run economic self-interest. Sort of like the Marxist concept of false consciousness but turned on its head.

Not saying that will be an easy trick to pull off but it seems like a more promising avenue to explore than hoping postwar socialism will suddenly start working again.

When saying ‘not all men’ might actually be constructive


‘Not all men’ is one of those phrases that has become a shorthand for something wider. In this case it is the tendency of discussions of women’s experiences to be derailed by men wating them to be about their response to it:

…the people saying [‘not all men’] aren’t furthering the conversation, they’re sidetracking it. The discussion isn’t about the men who aren’t a problem….Instead of being defensive and distracting from the topic at hand, try staying quiet for a while and actually listening to what the thousands upon thousands of women discussing this are saying.

However, I do feel that with regards to the tape of Donald Trump more or less admitting to sexually assaulting women, it might help to get to the point rather than deflecting from it.

A key part of Trump and his surrogates attempts to justify these comments has been to essentially say ‘he’s a guy. What did you expect?’

Trump himself characterised it as ‘locker room talk‘. One of his sons said it was “what happens when alpha personalities are in the same presence.” And actor Scott Baio said “Ladies out there, this is what guys talk about when you’re not around. So if you’re offended by it, grow up. Okay?”

At which point it becomes a rather salient to note that ‘not all men’ say the kind of things Trump did or do the kind of things he described. The most eloquent itteration of this point came from American football Chris Kluwe, who wrote an open letter to Trump:

I was in an NFL locker room for eight years, the very definition of the macho, alpha male environment you’re so feebly trying to evoke to protect yourself, and not once did anyone approach your breathtaking depths of arrogant imbecility. Oh, sure, we had some dumb guys, and some guys I wouldn’t want to hang out with on any sort of regular basis, but we never had anyone say anything as foul and demeaning as you did on that tape, and, hell, I played a couple years with a guy who later turned out to be a serial rapist. Even he never talked like that.

We are not talking about the difficult stuff here. Clearly heterosexual men are going to notice how attractive or otherwise a woman is. Evolution has hardwired us to do that. And it is hard to stop that awareness subconsciously bleeding through into our decision making. Indeed, it is so hard that there’s a school of thought backed up by strong academic research that rather than trying to avoid it, we should design systems that negate the impact of the resulting prejudices. The archetypal example is having musicians audition behind a screen.

But what Trump is exhibiting isn’t the hard stuff. In the video, he says that he “can’t help” kissing beautiful women he sees but unless he has a psychiatric disorder he in fact can. Doing so requires a conscious decision on his part, as does recounting it later.

In his response to the video, Trump noted that he is not perfect. Well no one is. But plenty of men manage to imperfect without committing sexual assault. It’s not not something being a man compels you to do. Gender is not destiny. Being a man does not compel you to behave that way. The existence of men who don’t proves that. Trump had a choice and he made a terrible one.

Not all men attack women and then brag about it. If you do, that’s your fault and your gender is no excuse.

Leonard Cohen should have got Bob Dylan’s nobel prize

On this blog I give my opinion on many subjects I am not really qualified to be talking about. However, I’m particularly bad person to be commenting on who should win the nobel prize for literature because, well, I don’t read a massive amount of literature. I suppose I’d be even more lost discussing the physics or medicine prize. But it’s a pretty marginal difference.

However, I will say that if the prize committee was set on giving the prize to an elderly North American singer who can’t sing but nonetheless became a cultural icon in the 1960s, I really feel they picked the wrong one.

I don’t hate Dylan a much as some people do. I quite like the Hurricane. And other better performers manage to elevate some of his songs. Of course, there’s Hendrix’s All along the Watchtower  but I’d especially commend Tracy Chapman and Nina Simone’s version of the Times They Are a A-Changin’.  But when Dylan is singing and writing, my emotional response is the kind of irritation I might feel if I was trying to do work in a cafe, while at the next table two mediocre humanities students discuss how people need to understand that protest is like actually a kind of music.

If by contrast, the prize had gone to Leonard Cohen then I would have been excited. To my ears, his songs have far greater power than Dylan’s. While both men have pretty severe vocal limitations, Cohen’s work in his favour. Dylan speaks – I use that verb deliberately – with a rather grating nasal whine but Cohen intones with echoing and edgy voice.

Now the Nobel prize for literature is an award for writing rather than performing, so this does not necessarily need to matter. But it seems that the literal voices of these two men influenced their authorial voices. Both write in cryptic couplets but I feel no urgency in deciphering Dylan’s. As I’ve already said they seem like pretentious coffee shop twaddle. But Cohen makes it seem like your life depends on getting to the bottom of lyrics like:

They sentenced me to twenty years of boredom
For trying to change the system from within
I’m coming now, I’m coming to reward them
First we take Manhattan, then we take Berlin
I’m guided by a signal in the heavens
I’m guided by this birthmark on my skin
I’m guided by the beauty of our weapons
First we take Manhattan, then we take Berlin

I have only the faintest idea what that might mean but its menace and mystery is both enticing and repulsive. Throughout his career Cohen retained what looked like a connection to this elemental darkness. On his penultimate album, released when he was 77, Cohen even includes a song called Darkness. It is one of the things I can point to as truly giving someone who’s been fortunate enough never to suffer depression, a sense of the insidiousness and relentless nature of the condition.

This kind brutality is present in his writing even when it’s at its most apparently mainstream. Hallelujah has been covered by everyone from Jeff Buckley to X-Factor winners. But all these versions feel inadequate next to Cohen’s because they make it a love song. They make biblical allusions into metaphors. But in Cohen’s voice the song does sound like an emanation from inhuman realm. This allows it to embrace both romantic and religious sensibilities, to reflect that faith can be as intoxicating as love, and that feeling an intense connection to another human can be as strange as sharing one with an unseen deity, and to express how bereft one can be if you loose either.

Like so much of Cohen’s work it is apparently baffling yet conjures something very direct and powerful. It is beautiful whilst be disturbing. It is otherworldly but also very human. It doesn’t need validation from any prize committee but it would have been nice to see it get it.

The last Lib Dem manifesto mentioned Israel more than the entire Asia-Pacific, and that’s a problem

The good folks at Liberal Democrat Voice have very kindly run an article I wrote on the Liberal Democrat policy towards the Asia-Pacific, or rather the lack of it. They sensibly ask contributors to keep their submissions fairly short. Given that I was writing about a rather broad topic that meant I had to leave a fair amount out. So for those of you who are interested, here is the unabridged version of the article.

Did you see Gary Johnson – the Libertarian Party candidate for the American presidency – forgetting ‘what’ Aleppo is? If not I’d recommend it:

I challenge you to watch the look of bafflement on his face and not laugh. But when you have finished chuckling, may I ask you a question? What do you think about Shenzhen?

My guess is most of you are now drawing a blank. Until I had to catch a train from Shenzhen station, I did not know either. Which is rather embarrassing as by one definition it is the 8th largest city in the world. It is adjacent to but several times the size of Hong Kong. Startlingly, China has grown so large that Hong Kong is no longer among its twenty largest cities.

Most Britons now know that China is enormous. What is less widely understood is that so is the rest of the Asia-Pacific region. Indeed more people live there than in the rest of the world combined:

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Credit: Redditor valeriepieris

Despite this the last Liberal Democrat manifesto includes more references to Israel – which has 0.001% of the world’s population – than to all the countries in the Asia-Pacific combined. And the only context they are mentioned in is advocating the benefits of EU membership. There are (or have been) groups declaring themselves to be “the Liberal Democrat Friends…” of Israel, Palestine, Kashmir, India and Turkey but not of China, Indonesia or Vietnam.* Basically it appears that if a Lib Dem says they are interested in foreign policy that means they are interested in Europe or parts of the Islamic world somewhat adjacent to it.

I can foresee two possible reasons to think it is more import for British politicians to know about these regions than about the Asia-Pacific.

Firstly, they are nearer the UK. This has some merit but misses our close connection to the Asia-Pacific. Much of it used to be British colonies and as a result many Britons can trace their ancestry there. More than 100,000 students from the region study in the UK. China is our second largest import partner. Many of the financial flows to and from the Asia-Pacific go via the City of London. Lest we forget, HSBC stands for ‘the Hongkong and Shanghai Banking Corporation’. And thousands of British citizens, myself included, live in the region.

The other response might be to suggest that there have simply been more events worthy of our attention taking place in Europe and the Middle East. If you have been thinking this then this demonstrates my point about how little attention is paid to the Asia-Pacific. It is true that the region has not seen anything as grim as the Syrian Civil War of late. Though the situations of the Rohingya minority in Burma and of the citizens of North Korea do bear comparison.

However, plenty else has happened. Ponder the following developments:

When a crisis eventually pushes one of these issues into the spotlight of British politics – and that will happen sooner rather than later – will we have something more to offer than a Gary Johnson style blank stare? We certainly could. We have done it before. Paddy Ashdown’s advocacy of giving passports to the residents of Hong Kong ahead of its return to China was one of the issues the Party used to prove its relevancy and distinctiveness after the disaster of merger. But my impression is that our credibility on that issue was essentially down to Ashdown personally – he had lived in Hong Kong and spoke Chinese – and is not something that we institutionalised at all. I may be being unfair but I struggle to think of anyone other than Ashdown at a senior level in the Party who has much insight into the Asia-Pacific. We have to rectify that. The Asia-Pacific is set to be the fulcrum of the twentieth-first century. If we have nothing to say about it, in a real sense we have nothing to say about the world we live in.


*There are the Chinese Liberal Democrats but they exist “to promote closer links between the Party and the Chinese and South East Asian community in the UK.”


If you are interested in this topic then check out a post I wrote last year on why British politicians need to stop ignoring China

Best things I’ve read recently (18/09/15)

Marvel Music, Miserable Kids and Masses of Being Mean to Liam Fox


Britain is woefully unprepared for the thing I told it to vote for, says Liam Fox (Newsthump)

“Describing other people as ‘fat and lazy’, Fox criticised Britons for not doing anything like enough to mitigate against the consequences of his actions, and said he expected everyone to pull their finger out to make his fantastic notion work.”

Fat and Lazy by Chris Dillow (Stumbling and Mumbling)

“For many of us the fact that some businesses are “fat and lazy” was a key reason to favour remaining within the EU. When Brexiters told us that Brexit would allow us to reach free trade agreements with non-EU nations, our response was a fear that exporters would not quickly or sufficiently step up sales to non-EU countries. You can think of “fat and lazy” as micro-foundations for the gravity models of trade which underpinned the economic case (pdf) for Remain.”

Maybe Stop Asking Kids to Recap Their School Day by Cari Romm (The Science of Us)

“Adolescents may have fun at school with their friends, but they are also in close quarters with scores of peers they didn’t choose,” Damour wrote. “The rough adult equivalent would be to spend nine months of the year in all-day meetings with 20 or more random age-mates — and be expected to bounce home and share enthusiastic updates.”

Tweet of the week:

Video of the week:

Podcast of the week:

This week’s Newsquiz is fantastic or more specifically the spectacular section about Bake Off is. While I have my reservations about Radio 4’s topical comedy, it does have one big thing going for it: Susan Calman.