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.

Addendum:

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.

Same sex marriage is not a gateway to polygamy

The two issues are not the same: one is about who can get married, the other is about the nature of marriage.

The increasingly feeble efforts of opponents of equal marriage to find (apparently) non-homophobic grounds for their belief often seem to lead them to a slippery slope argument: if we allow gay people to marry then it logically follows that we have to allow polygamy too. No less a figure than John Roberts, the Chief Justice of the US Supreme Court, made this argument in no less a place than his dissent from his Court’s decision to legalise equal marriage.

More strangely, this argument has now been adopted by those of a more liberal disposition. Take, for example, this piece from the Economist arguing that:

Now that gay marriage is finally legal from sea to shining sea, it’s time for liberals to refine their arguments against polygamy. We need better, more rationally compelling arguments if we wish to be fair in shutting against would-be polygamists the libertarian door that we’ve just blasted open.

I confess I just don’t see the strong connection between the issues that proponents of polygamy and opponents of SSM do. In only the vaguest sense are the issues analogous.

For starters, the nature of those supposedly discriminated against is profoundly different. Being gay is an immutable and fundamental element of a person’s identity. Yes, most individuals probably have some fluidity as to their sexual identity but not enough to prevent a societal norm that one must be straight causing psychological damage to vast swathes of people. For this reason, virtually all legal systems treat sexuality as one of a number of characteristics (the others being race, sex etc.) that require special protection.

Desiring to marry more than one individual is not such a characteristic. It is an opinion or lifestyle choice that generally attracts no special protection from human rights law. It might be that those with religious motivations for their polygamy may be an exception because faith is generally a protected characteristic. However, if they could clear this hurdle they would face another.

Despite the frequent howls from its opponents that same sex marriage was a ‘redefinition’ of marriage, it actually leaves the institution itself almost wholly unchanged. What it does is allow access to the institution to those who were previously denied it. To give it legal effect all that is required is to replace gender specific pronouns in legislation.

In an article for the  Atlantic, Conor Friedersorf explains why permitting polygamy would be a vastly more complicated matter:

….the legal institution [of marriage] is largely concerned with the “designation, without elaborate contracting, of a single other person third parties can look to in a variety of legal contexts.” Three-, four-, or five-person unions would require abandoning that aspect of marriage.

Americans can presently marry a foreign citizen and bring them here, after jumping through bureaucratic hoops, eventually sponsoring them for U.S. citizenship. Would the advent of plural marriage require that this practice be ended? Or would group marriages include the right to confer unlimited citizenships?

When I got married I was eligible to add my wife to my employer-sponsored health insurance. In a world of plural marriage, would this benefit of the institution end, or could I add as many people as I liked to my employer’s insurance plan?

If the parties to a plural marriage disagree about a medical decision that needs to be made on behalf of an unconscious spouse, who would get to decide the matter? Who would receive the Social Security survivor benefits if the patient died? These logistical matters add real costs to recognizing plural marriages––and they lessen the simplifying benefits that marriage confers on society. They also suggest that expanding the definition of civil marriage to encompass more than two parties is a far more radical, fundamental change than was recognizing unions of same-sex couples.

It thus follows that a prohibition on polygamy is not an arbitrary act of discrimination but a decision as to the nature of one of our most important legal institutions.

Which is not to say that polygamy is undesirable.* There is a big difference between saying something is not a human right and saying it is not right. However, that means it’s a subject for democratic debate. And as the ones advocating a change, the onus is on advocates of legal polygamy to provide positive reasons for allowing it. They cannot, as some hope and others fear, simply point to the advent of equal marriage and claim it necessitates their position.

*Though as it happens I would indeed make that argument.

Praising Magna Carta, burying the Human Rights Act

How a mythical version of Magna Carta is being used to undermine real human rights.

Magna Carta – more often invoked than understood

The Onion, with its typical brilliance, once concocted the headline “Area Man Passionate Defender Of What He Imagines Constitution To Be” for the satirical story of

self-described American patriot Kyle Mortensen, 47,….whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. “It’s time for true Americans to stand up and protect the values that make us who we are.

And thinks:

…the most serious threat to his fanciful version of the 222-year-old Constitution is the attempt by far-left “traitors” to strip it of its religious foundation.

“Right there in the preamble, the authors make their priorities clear: ‘one nation under God,'” said Mortensen, attributing to the Constitution a line from the Pledge of Allegiance, which itself did not include any reference to a deity until 1954. “Well, there’s a reason they put that right at the top.

In Britain, we don’t have a codified constitution to reimagine in line with our ideological prejudices. But we do have Magna Carta. And instead of Kyle Mortensen, we have David Cameron, who will say:

… the world was changed for ever when King John put his seal to Magna Carta. “The limits of executive power, guaranteed access to justice, the belief that there should be something called the rule of law, that there shouldn’t be imprisonment without trial – Magna Carta introduced the idea that we should write these things down and live by them.

But that:

“…here in Britain ironically, the place where those ideas were first set out, the good name of human rights has sometimes been distorted and devalued. It falls to us in this generation to restore the reputation of those rights – and their critical underpinning of our legal system. It is our duty to safeguard the legacy, the idea, the momentous achievement of those barons. And there couldn’t be a better time to reaffirm that commitment than on an anniversary like this.”

The legal journalist David Allen Green dissects this peculiar British habit of praising Magna Carta whilst disdaining the human right instruments that are actually in effect. Drawing on a speech by Supreme Court justice Lord Sumption he observes that the document itself was toothless, irrelevant and short-lived. It was essentially forgotten until propagandists in the age of the Stuarts began using it as a basis for their contemporary claims:

“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right”.

It is heady stuff, and it should be read aloud, perhaps to Purcell or Elgar.

But read it again carefully, and you will see it says little which is concrete at all. For as Sumption and others have pointed out, its meaning is essentially circular: you shall only be treated by the law under the “law of the land”.  it tells you nothing about what that law should be.  And if the “law of the land” includes, say, an unfettered royal prerogative or other unlimited executive powers, then it offers no protection whatsover; and it didn’t.  It was – and remains – a platitude, a slogan.

And so, the advances in “liberal” protections for the individual in English legal history – the writs of habeas corpus or the rulings against unrestricted warrants – came in unrelated legal developments, none of which depended on Magna Carta.

In fact, for a supposedly fundamental document, there is little to see of its “fundamental” effect: few, if any, cases have ever turned on it.  Although it is often invoked in passing, it lacks the live and real effect of an actual constitutional instrument.  Compare this impotence with the entitlements in the US Bill of Rights, which make actual differences to US citizens every day.

But, but….

But, so what?  Magna Carta is symbolic, isn’t it? And isn’t symbolism important?

So used are many people to thinking Magna Carta is a Good Thing they are displeased at hearing anything about it other than praise.  Don’t you understand, they will ask, that Magna Carta is symbolic?

Symbolism is important. And what Magna Carta is symbolic of is not a great English constitutional principle, but the lack of one.  It symbolises the capacity of people to nod-along at being told they have fictional and non-existent rights instead of having rights which can actually be enforced.  It symbolises that people are content with believing in fairy tales.

Those with political and legal power know this.  It is safe for the government to want you to celebrate Magna Carta, which you cannot rely on in court, whilst it – for example – seeks to repeal the Human Rights Act, which you can.

Does Magna Carta mean nothing to you, asked Tony Hancock.  Sadly, to the extent it matters, Magna Carta means almost nothing at all.

Now, one could be cynical about Cameron wrapping himself in Magna Carta; he has to talk about Magna Carta for the same reason communist East Germany had to call itself ‘the German Democratic Republic’. I’m inclined to be more generous and see it instead as an example of widespread naivety on the right. They think liberty is intrinsic to Britishness: just look at our history of respecting  freedoms that stretches all the way back to Magna Carta!

One can see this assumption that the British of all people don’t need need onerous human rights standards in the regularity with which opponents of the ECHR observe that it was originally intended to stop the rise of another Hitler and therefore should not possibly be affecting a country like Britain. Indeed, I once heard a Conservative friend argue that it was safe to scrap the Human Rights Act because “it wasn’t like we weren’t free before it passed”.

This is a supremely complacent reading of history. It arises from the conservative proclivity for reducing the word to simplistic binaries: there are free nations and then there are tyrannies. In fact, free nations can act most tyrannically. For example, the US Senate’s report on the use of torture found that amongst other atrocities, detainees had pureed food pumped it into their anuses.

Some of the victims of these cruelties found themselves in Black Sites due to collusion by British authorities. And lest we forget we used torture ourselves in Northern Ireland, in our colonies and even during our proudest moment: WWII.

Sadly, this is not an exception. Britain has a long history not only of freedom but also of oppression. We were the nation that invented concentration camps. British soldiers massacred hundreds of peaceful protestors on a single day in India. The victim’s relatives did not have the option that Baha Moussa’s family did of taking Britain to the ECHR. Or closer to home, we might note that marital rape only became a crime in Britain in 1991. There is thus nothing about being British that makes us impervious to the temptation to abuse and degrade.

That means we need those instruments that entrench a culture of human rights. It is good that we that through the ECHR, we are part of a community of nations that challenge each other to uphold human rights. And it is desirable that the Human Rights Act makes it easier to bring challenges by allowing them to be heard in British courts rather than a massively backlogged one in Strasbourg. Neither Magna Carta specifically nor our history generally gives us any right to imagine we are above such things.

Red Bull is useless

Or not!

It appears Red Bull will have to pay up to $13 million in compensation to customers following a lawsuit claiming that its claims to be energising are BS. As the Atlantic explains:

Red Bull differs from traditional soda only in that it contains taurine (an amino acid) and B-vitamins. Unless you are deficient in taurine or B-vitamins, the energy promised in the marketing of the energy drink comes from the sugar and caffeine, just like soda. And the caffeine content, at 80 mg per can, is modest relative to other similar products. Another soda marketed as an energy drink, Rockstar, contains twice as much caffeine as Red Bull. Those ubiquitous little 5-Hour Energy shots outdo both at 208 mg. But all pale compared to coffee in the quantities it’s now sold. A Starbucks venti has 415 mg of caffeine.

Essentially, it is not an energy drink at all but a regular fizzy drink.

There is no such thing as a trivial breach of human rights

For the second part of what I fear will be an ongoing series on why the Tory proposals on human rights are awful, we turn to the notion of trivial human rights. Here let me quote from Mark Elliot’s analysis of this issue:

In some ways, the fifth proposal is the most astonishing. Under it, the use of human-rights laws would be limited to “the most serious cases”. The obvious question which this invites is: what would constitute a sufficiently serious case? The answer given in the Conservatives’ paper is as follows:

The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

This proposal is questionable on a variety of levels. It is, for instance, unclear why cases involving “criminal law”, “liberty” and “property” should be singled out as particularly important. What of free speech, the right not to be tortured, and rights of due process? Nor is it clear what would constitute “similar[ly] serious matters”. It is not even clear by reference to what criteria seriousness and its observe, triviality, would be determined.

There is, however, a larger point here. To focus on the technical difficulty involved in differentiating between serious and trivial human-rights cases would be to confer false dignity upon that distinction. There are meritorious (i.e. well-founded) and unmeritorious (i.e. not well-founded) human-rights claims; but to suggest that there are serious and trivial human-rights claims is to diminish — indeed, misunderstand — the notion of human rights at a fundamental level. This is not to suggest that there may not be a hierarchy of rights (as is reflected, for instance, by the distinction between absolute and qualified rights), but the very fact that a right is considered to be a human right ought to immunise it against any suggestion that it is insufficiently important to warrant judicial protection if unlawfully infringed.

If the Conservative Party wishes to argue in favour of judicial protection of a much narrower range of rights than those that are presently recognised by the ECHR, then it is perfectly entitled to make such an argument — but it is disingenuous to claim that the Bill of Rights would include all of the Convention rights, only to deny judicial protection in respect of those judged to be “trivial”.

As far as I can see, the Conservatives have failed not only to explain what will constitute a “trivial” breach but – as far as I can see – haven’t even given any examples. That leaves me rather unclear what it is exactly I’m critiquing. But as with the matter of “responsibility” that I looked at yesterday, Grayling and the Tories are trying to add what wasn’t missing in the first place.

Most of the rights contained in the ECHR are ‘qualified.’ That the public authority will not be in breach of the Convention if it can show that it was ‘justified’ in interfering with that right. The question of justification is assessed in part by reference to idea of ‘proportionality.’ This means that greater interferences demand stronger justifications. And that conversely, a trivial interference will be easy to justify.

Even for ‘unqualified’ rights, the Court will still need to be convinced that a right has been interfered with.  So for example, Article 5 prohibits the “deprivation of liberty” (i.e. unlawful imprisonment) but distinguishes between that and mere “restrictions on movement.” And the court is pretty serious about what it takes for the later concept to turn into the former. In one case it ruled that police kettling did not constitute a “deprivation of liberty.”

My fear as with “responsibility” is that this is not only unnecessary but another way to take human rights away people the Tories don’t approve of: that a breach will be trivial if it affects ‘our people‘ but not if its human rights of gypsies or asylum seekers on the line.

Human rights law already takes account of responsibilities

Cait Reilly, whose legal challenge to being made to work for benefits was used as an example of the fact judges weren’t taking account of people’s responsibilities – until the Supreme Court ruled her human rights had not been breached.

Legal journalist and blogger, David Allen Green, appears to have got hold of a press release detailing Tory plans to repeal the Human Rights Act and replace it with a British Bill of Rights. It’s not an encouraging read as it becomes clear that despite the rhetoric the purpose is to curtail human rights. I was particularly disappointed to see the following:

The plan provides a proper balance between the rights of citizens and their responsibilities in our society, and in particular to limit the ability of those who threaten British citizens or society to use human rights laws to protect their interests at the expense of the victims or potential victims.

The reason that this is so depressing is that the Conservatives had appeared to get that it was a pernicious idea to encode ‘responsibilities’ into human rights law. The Commission on a British Bill of Rights established as a result of the coalition agreement failed to reach consensus on very much at all – including whether their should even be a British Bill of Rights – but there was agreement amongst its members (including the Conservative ones) that:

 

….it is in the nature of  human rights that they exist for all human beings equally without reference to whether they are ‘deserving’ or not and that they cannot be made directly contingent on the behaviour of the individuals concerned. We thus do not believe, if there were to be a UK Bill of Rights, that the rights it contained should be made conditional upon the exercise of responsibilities. We do believe, however, that the formulation to be found in a number of the existing Articles in the European Convention on Human Rights whereby the rights in question are subject to such exceptions as are necessary in a democratic society for, amongst other things, the protection of the rights and freedoms of others, is one which should be emphasised in any UK Bill of Rights. We also believe, for reasons which are set out in the body of our report, that a UK Bill of Rights, if there were to be such a Bill, should contain a jurisdiction for a court to award damages but that this course should be discretionary and that in reaching such decisions the courts should be directed to take into account the conduct of the applicant.

It went on to explain that:

Many respondents [to the Commission’s consultation] also argued that responsibilities were in practice already present within the fabric of our present human rights legislation, not least by reference to many of the balancing tests in the European Convention itself. They noted that there were very few absolute rights under the Convention and that both the Convention and the Human Rights Act already focused, correctly in their view, on the rights of others and the wider public interest. For example, the human rights charity, René Cassin, said in response to our consultations that Convention rights are constantly weighed “against the general good of society, such as public health or national security. This is responsibilities by another name.” Others made the point that responsibilities were already embedded in our legal system by virtue of individuals who break these laws being subject to punishment through the normal criminal justice system.

I suppose that one could conclude from this that recognising responsibilities would simply be redundant and therefore harmless. If only that were true.

Reading the list of cases the Conservatives claim they will stop human rights being applied in makes it clear something more sinister is going on. I fear that talk of ‘responsibility’ in this context is dog whistle politics: a way to right-wing voters that ‘of course people like you deserve human rights but not those travellers, terror suspects or immigrants.

The supreme court justice who’s been silent for 8 years

Justice Clarence Thomas - the quiet man

Justice Clarence Thomas – the quiet man

Clarence Thomas is a remarkable individual. He was born into creole speaking community in Georgia and raised in poverty by a poor single mother. Yet he rose to become chairman of the US Equal Employment Opportunity Commission and then only the second African American ever to sit on the US Supreme Court. He also stands out for being that rarest of breeds in American politics: a black conservative. In fact, by most reckonings he is the Court’s most conservative member.

He’s also remarkable for not saying a great deal. As Jeffrey Tobin of the New Yorker – a persistent critic of Thomas – explains:

As of this Saturday, February 22nd, eight years will have passed since the last time Clarence Thomas asked a question at a Supreme Court oral argument

…………………….

The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows to the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case. There’s a reason the phrase “your day in court” resonates. It is an indispensable part of the legal system. But the process only works if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.

In fact, Tobin notes that there are two justices – Sonia Sotomayor and Elena Kagan – who have never heard Thomas take part in a hearing.

Do Muslims who work in supermarkets have the right not to handle alcohol and pork?

Over the festive period a controversy has emerged about how supermarkets deal with staff who for religious reasons won’t handle certain goods.

Marks & Spencer has apologised after a Muslim member of staff refused to sell a customer alcohol. The retailer said that where employees had religious beliefs that restricted what foods or drinks they could handle, it tried to place them in a “suitable role”. An M&S spokeswoman said: “We regret that in the case highlighted we were not following our own internal policy.”

The issue arose after an unnamed customer at a London store told the Telegraph they were “taken aback” when an “extremely apologetic” Muslim checkout worker asked them to wait for another till to become available.

There is clearly a variety of different supermarkets handle this issue differently:

Tesco said it treated each case on its merits, but said it “made no sense” to employ staff on a till who refused to touch certain items for religious reasons.

Asda said it would not deploy Muslims on tills who objected to handling alcohol, while Morrisons, which is based in Bradford where there is a large Muslim community, said it had widespread experience of dealing with the issue and would “respect and work around anyone’s wishes not to handle specific products for religious or cultural reasons”.

This debate has focused on what if any concessions supermarkets choose to make to Muslim employees in such circumstances. However, it’s also worth asking what they are legally required to do.

Until last year, the answer would be basically nothing. The courts would have said an employee’s freedom from duties they object to on religious grounds was guaranteed by their right to resign. If they found parts of their jobs objectionable they should leave it, and that was all the protection they needed.

This was never a very satisfactory doctrine, not least because many workers cannot simply hop from one job to another. The European Court of Human Rights recognised has now recognised as much. Last year, in Eweida and others v UK withdrew its past endorsement of the right to resign.

Based on the facts and the decision in Eweida, we can deduce some parameters.  Indirect religious discrimination can be justified where there are ‘strong’ grounds such as health and safety or protecting another minority but not for ‘weak’ grounds like protecting brand image. That leaves supermarkets in a tricky position. It is hard to say what would happen in a case resolving with ‘moderate’ grounds like upsetting customers, disrupting work patterns or creating resentment among other employees. And it probably won’t be possible to answer until a court rules on such a case.

That’s not ideal – supermarkets are big employers and this leaves a lot of employees unclear as to their legal rights.

Private schools are a con (2): their charitable status

Harrow School - registered charity

Harrow School – registered charity

Reflecting on the charitable status of independent schools, Archie Bland writes that:

Private schools, it always surprises me to remember, are charities. They are therefore subsidised by taxpayers to the tune of more than £100m a year.

In itself, this is counter-intuitive, but perhaps justifiable. Education is always a laudable aim, and if private schools are making serious efforts to ensure that the beneficiaries of their mission are not just the very wealthy, they may have a case. The most obvious way for them to prove it, of course, is by trying to make sure that their fees aren’t a barrier for entry to children who would benefit from what they have to offer. And the most intuitive way they can do this is by finding ways to help them with the fees.

In 2006, the Labour government seemed to take a significant step towards ensuring this, when the Charities Act did away with the presumption that the provision of education was an automatic public benefit – that is, it forced schools to justify their charitable status, instead of simply continuing to say that the mission to spare the progeny of aristocrats the indignities of the state sector was valuable to us all. But it left the test of public benefit to the Charity Commission.

After losing a gruelling legal battle to the Independent Schools Council, last week it issued new guidance that made the idea of private schools having to pass any serious test to justify their status a complete joke. Under the new rules, the Charity Commission will not be able to exert any pressure on schools over how to provide a public benefit to ordinary people. Instead, that will be left up to the governors of the school in question. And that means that you can expect a lot fewer subsidised places. Instead, they will be able to get away with nothing more substantial than the occasional Latin masterclass. The absurdity of the situation was perhaps summarised most neatly by a phrase from the tribunal judgment that led to that new guidance: A school’s status as a charity, the tribunal said, “depends on what it was established to do, not what it does.”

Quite how that definition is enough to justify the term “charity”, and all of the benefits that come with it, is quite beyond me. If I give a few quid to Oxfam every month, and volunteer for the Samaritans, the government doesn’t let me dodge my taxes. But that’s what’s happening here: a few minor charitable acts, and a supposedly charitable purpose, are being allowed as a justification for terming the whole enterprise a charity, even though the vast majority of the work being done is for the benefit of an ever-more exclusive minority – and even though there are strong arguments to be made that private education is an actively bad thing.

Having read the 2011 judgement – which is not online in a free version but is summarised here – I have to agree. They conclude that all that they cannot make independent schools provide any for non-fee paying students apart saying it must be ‘more than trivial.’ Even the suggestion that provision should need to be ‘reasonable’ was rejected. And to cap it all those who received bursaries and scholarship did not have to be in any meaningful sense deprived – anyone unable to afford fees of up to £40,000 could potentially count.

Now I am not suggesting that the judges made a mistake. They were acting within the confines of the law as it stands and to have gone further would have been judicial law making. However, politicians can and should change the law.

Fiona Miller suggests the form such changes could take:

require more exacting eligibility criteria for bursaries (I favour focusing them on those pupils most at risk of exclusion); partnerships that make a quantifiable impact on the performance of local state schools and their most needy, rather than most able, pupils; and more rigorous methods of measuring that impact.

The private charity schools will say this is a costly distraction from their core job of educating an elite very well. Some of their parents, many of whom are powerful voices in society, will object to their fees being diverted into “legs up” to schools they have rejected for their own children. But charitable status is a right to be earned, not a privilege. Until the private sector can make a better case for the public benefit it provides, it should do more than simply exist.

A Church bleating about “Christianophobia” – Screwtape’s Dream

Courtesy of Anglican Memes and Humour

Courtesy of Anglican Memes and Humour

In the CS Lewis’ Screwtape Letter, a senior demon writes to his junior that:

Any small coterie bound together by some interest that other men dislike tends to develop inside itself a hothouse mutual admiration and toward the outer world a great deal of pride and hatred.

Even when the little group exists originally for the enemies own purposes this remains true.  We want the church to be small not only that fewer men may know the enemy but also that acquire the uneasy intensity and defensive self-righteousness of a secret society or clique.

The church itself is of course heavily defended and we have never yet quite succeeded in giving her all the characteristics of a faction.

This now seems prophetic. Screwtape would be delighted to see the Christians who’ve become convinced they are victims of Christianophobia.

In one of the first posts on this blog I discussed how a majority of Christians believed themselves to belong to the most discriminated against community in Britain, even though statistics on hate crimes indicated otherwise.

We saw this week a particularly striking example. Premier Radio, a Christian broadcaster, was challenging a ban on airing an advert that read:

Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the workplace. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit CCPmagazines.co.uk and report your experiences.

Various lower courts had ruled this fell foul of the ban on political adverts on TV and Radio. Premier appealed claiming that the purpose of the advert was to not to promote a political objective but gather information. The Court of Appeal rejected this because there was an implicit political message within the advert. At no point was it suggested that a non-Christian group in an analogous position would have been treated differently. In fact, the case law on this point was developed in a case involving an animal rights group. However, in their press release relating to the judgement they still labelled this “an attack on freedom of speech for Christians.”

This is just the latest example of how the court cases tangled in the controversy over Christianophobia don’t bear out the idea that the law discriminates against Christians.

What we are hearing in the cry against imagined ‘Christianophobia’ is not a horror of discrimination but a demand for it. It assumes that Christian’s beliefs are legal ‘trump cards.’ So that rather than balancing their rights with other considerations, they should be preeminent. This reached its bizarre apogee with a former Archbishop of Canterbury – albeit George Careydemanding special courts to deal with religiously sensitive cases.

Why I found this dispiriting – and guess Screwtape would be delighted – is that this is not what the Church should be about. Surely its a distraction from its proper role of proclaiming the gospel and fighting for justice. It also seems that demanding special favours for its members will sap its moral authority.