Category Archives: Law

Asking the wrong question

The Divisional Court’s judgment against the Government in R (Miller) v Secretary of State for Leaving the European Union [2016] EWHC 2768 (Admin) is being pored over as I type, but it seems to me that the Government’s defeat came out of a failure to make correct submissions.

It was common ground between the Crown and the claimants that the Article 50 notification would inevitably result in alterations to rights and obligations in UK law (paragraphs 10 and 11). This leads inexorably and inescapably to the conclusion, founded on the Case of Proclamations (1610) Co. Rep. 74, that the Crown (i.e. the Government) cannot make the Article 50 notification without the consent of Parliament expressed through an Act of Parliament. The Crown’s submission that Parliament had intended that the Crown be able to make alter those rights and obligations was rejected, probably correctly:

para-94

But this outcome was only inevitable if the Crown conceded that the Article 50 notification does indeed alter rights and obligations in domestic law – which, although it appears to be the view of the court, is not really argued over at all. This is not necessarily the case.

On an orthodox reading of the relationship between the domestic legal jurisdiction and the international legal jurisdiction, the British courts deem themselves unable to address international legal questions. This is a simplification but it will serve for the time being.

The court in Miller took the EU rights in domestic law that British citizens enjoy to rest upon membership of the European Union. It seems to me that this is not quite correct. This is true of the rights in EU and foreign law that British citizens enjoy. In domestic law, however, those rights in the domestic sphere flow entirely from the European Communities Act 1972, which confirms the principle that EU legislation is directly effective in the UK – and which would not do so without the European Communities Act. This is admitted by the court at paragraph 41 and 42 as a direct consequence of the fact that the Crown could not alter domestic law on its own:

para 41-42.PNG

Accordingly it is possible to imagine the following legal situation. The Crown activates the Article 50 notification and Britain departs from the European Union two years later. However, Parliament refuses to repeal the European Communities Act 1972. This would mean that UK citizens are still subject to the rights and obligations incurred in domestic law as a matter of EU membership, but cannot enjoy the rights and obligations incurred abroad (such as freedom of movement) as those are a matter for foreign and European courts. The differences between these rights are discussed at paragraphs 57 to 61.

This seems to me to be the critical failure of the Government’s case. Instead of admitting the losing ground that the Article 50 notification would have domestic legal effects, it ought to have denied this and argued for a strict division of the domestic and international orders, asserting that Article 50 would have no domestic legal impact whatsoever. It then should have advanced the argument that Parliament intended the Crown to have the power to so alter domestic law as a second ground of argument, if the first was lost. As it was, they conceded the only ground they might conceivably have won on, and thus doomed the Crown’s case.

I am not sure why this has happened, as it seems fairly obvious. I suspect I have gotten something quite wrong – if anyone can help me out please inform me.

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Right of refusal: Ashers in the Court of Appeal

The Northern Ireland Court of Appeal judgment in the Lee v Ashers case is out today. It corrects some rather glaring errors in the initial County Court judgment and raises rather intriguing questions about how discrimination law is to develop in the future. At issue here, really, is not free speech but what is termed associative discrimination in the case law – in other words, were Ashers in effect discriminating against gay people by not baking a cake which would carry a slogan in support of same-sex marriage?

As the judges note at paragraph 55, the leading judgment here is Lady Hale’s in Bull v Hall [2013] UKSC 73, where she quotes Advocate General Sharpston in the EU case of Bressol [2010] 3 CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.”

What this means is that, in law, even if one doesn’t discriminate against (for instance) gay people explicitly, if the action you take only impacts gay people then that is still direct discrimination and ipso facto unlawful. This is clearly right – for instance, if people who have purchased sanitary products for personal use are barred from doing something, that is directly discriminatory against women even if one doesn’t expressly refuse to serve women.

The judge at the County Court got rather muddled in her judgment. She held that refusing to print a cake saying “Support Gay Marriage” was a case of direct discrimination because support for same-sex marriage was “indissociable from sexual orientation” – in layman’s terms, she was arguing that only gays and lesbians support same-sex marriage. “That was clearly wrong,” said Morgan LCJ rather flatly in paragraph 24 of today’s appeal judgment.

But the Court of Appeal did something much more ingenious. It looked, not at the cake or even the slogan as the benefit denied to Gareth Lee, the claimant, but at the benefit that accrued from the slogan (i.e. “Support Gay Marriage”). The reasoning of the Court at paragraph 58 seems to be that since only LGB people would benefit from the potential introduction of same-sex marriage in Northern Ireland, then refusing to print a message in support of that counts as directly discriminating against a protected group (and nobody else).

Morgan LCJ doesn’t go into great detail about what constitutes a benefit for these purposes. Courts are unsentimental places; it makes some sense that the Court of Appeal would not consider whether the emotional benefits to heterosexual friends and family of LGB people who might be able to marry would count as a benefit to people other than a protected class. But it’s worth working out what this might mean.

For example, a cake which carried the message “Support Affirmative Action” would most likely be protected in the same way; after all, only BME people will benefit (at least legally and financially) from quotas or positive discrimination. Likewise, a cake exhorting the eater to “Stand Up For the Gender Recognition Act” can only provide a legal and financial benefit to trans people, another protected class under the Equality Act. However, a message such as “Abortion Rights Now” might not, because it is not just women who might benefit from women being able to control their number of offspring. The distinction is not an easy one to draw, but it does appear to be the only (rather vague) principle which comes out of the case.

Had I been the judge here, I suspect I would have ignored the sexual orientation discrimination point and constrained the operation of the case to the bar on political discrimination. It is worth noting that political discrimination is not illegal in England, Scotland or Wales – it is illegal in Northern Ireland to try to stamp out sectarianism (i.e. so that nationalists cannot deny services to unionists and vice versa). On these grounds, as District Judge Brownlie held at paragraph 66 of her judgment in the County Court, this would have been a straightforward case of political and religious discrimination. This angle was avoided by the Court of Appeal, as it isn’t necessary to reach a finding, but I think it makes more sense and requires fewer logical leaps than the above. It is worth noting that in Northern Ireland, at least, Ashers would probably have to bake the aforementioned “Abortion Rights Now” cake.

This points to an interesting conclusion to be drawn from this case. The Court dismissed the operation of various defences to discrimination proceedings, which will undoubtedly be picked over by those more expert than me in these matters. At one point, Morgan LCJ said (para. 67) rather memorably that “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”

This seems a statement which will be hard to generalise past the instance of a bakery, but Morgan LCJ was making an important point. At para. 100 he noted that the “answer” to anti-discrimination legislation which hurts a business or offends certain beliefs is “for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. … 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 reflect their own political or religious belief …”

If, as seems likely, the implication from Ashers is that certain political statements are protected under discrimination law since their benefits would only accrue to a protected class, it follows that political opponents of those statements will have to issue a general prohibition on political statements. Morgan LCJ drew the comparison, at para. 47, to a printers’ firm providing election posters. It seems likely that a printer could refuse to print all political statements, but would not be permitted to refuse to print only statements on behalf of a same-sex marriage advocacy group or (to take my example) a campaign against the so-called ‘spousal veto’ in the Gender Recognition Act. In effect, the essence of the judgment is to make the publishing of certain political opinions compulsory by everyone who wishes to publish any political opinions whatsoever. This seems a somewhat adventurous interpretation of equality law, but it makes more sense than the messy first instance judgment.

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