Tuesday, 7 June 2022

Electing a Prime Minister of the UK - where does the constitution stand now?

 After a Jubilee weekend celebrating the 70-year reign of our constitutional figurehead, thoughts turned to our actual governing figurehead and whether he can hang on to the job he won, with an 80-seat majority in the House of Commons, 30 months ago. 

Last night 41% of Conservative MPs affirmed their lack of confidence in his leadership. Had this reached over 50%, there would have been an election for a new Conservative leader - but then what? 

Unnoticed in public discussion, the Dissolution and Calling of Parliament Act 2022 passed into law on March 24th. It repeals the 2011 Fixed term Parliaments Act, which protected the then Coalition government against the risk of losing support from either partner in the Commons.

The 2022 Act abolishes the 2011 arrangements and restores to the sitting Prime Minister (PM) discretion to use the ‘royal prerogative’ to call an election before the end of five year term of a Parliament. The law also says this cannot be challenged in the courts.

The government claims in its ‘explanatory note’ that the 2022 legislation simply restores a longstanding, ‘tried and tested’ constitutional convention. However, its note makes no mention of one part of this convention: that a Prime Minister resigns on failing to maintain the confidence of the House of Commons. This convention was tested to destruction during the 2017-2019 Parliament, when the Commons failed to find a way to carry on government when neither Ms May nor her successor Mr Johnson held a viable majority, but lacked enough votes to force an election under the 2011 arrangements. Hence the justification for the 2022 Act, supposedly restoring the pre-2011 position.

So where now is the understanding that the PM must keep the confidence of the Commons? It now remains only in one form: that the leader of the largest party takes the office of PM. If, after a general election, one party has an overall majority then its leader is invited by the monarch to form a government. If there is no such majority, then the previous PM remains in office until a new leader has a majority. If the party led by the PM decides to change it leader, then the expectation would be that the previous PM resigns and the Palace summons the new leader. However there is no legislation to this effect. If Boris Johnson were in fact replaced as Conservative party leader during the present Parliament, would he resign as PM?

Cabinet Minister Jacob Rees-Mogg (left) thinks there would have to be an election. He says the current constitution is de facto Presidential and therefore the mandate for the PM comes directly from the people and not from the Commons. 

So let's think about this scenario for a moment. If the Conservative party replaces him as leader, Mr Johnson could refuse to resign immediately. Instead, he calls an election - and says he will resign only when, after that election, a new leader has a fresh majority in the Commons. The only person who could insist on an earlier resignation would be the Monarch - risking drawing the Palace into politics, itself a violation of constitutional convention.

I am not suggesting that this will happen – only that it is a plausible speculation, based on the current situation of the constitution. 

We seem to accept that the constitution is something pretty much made up on the spot to suit the convenience of the current Prime Minister, be that Cameron in 2011 or Johnson after 2019. This must end, sooner or later, in many tears.

The last time a Conservative majority struggled to accept its own choice as Prime Minister, I offered my thoughts on a constitutional settlement. I think they still apply.

Tuesday, 17 September 2019

Putnam’s Upswing: when will we ‘we’ again?

Thanks to the brilliant Tortoise Media, I recently spent 90 minutes at the feet of the great Robert Putnam (pictured), hearing about his coming book on ‘the Upswing’[i] 

Putnam’s famous big idea is that democracy is sustained by a certain kind of community – one rich in the type of ‘social capital’ which is open and inclusive (‘bridging’) rather than dense and exclusive (‘bonding’). 25 years ago his ‘Bowling Alone’ pointed to a continuing decline in bridging capital in America, with rising individualism replacing commitment to community. Now he and his research team have greatly expanded the scope of his study and reflection.

Professor Putnam showed us a series of measurements over time of four aspects of American life often thought to favour a healthy society: relative economic equality, cross-party political co-operation, membership of social organisations and lower cultural individualism. The indicators show a common pattern on a bell curve: starting low in the 1890s, rising to a peak around the mid-1970s and falling away to current levels, back to where they were 120 years ago (in America’s ‘Gilded Age’). The age at which people start families tracks this curve (peaking in the early twenties around 1970, falling back to the early thirties now). Economic inequality, he said, is a lagging indicator – suggesting that cultural acceptance of greater relative privilege comes first, and the economic outcomes follow.

So how to measure cultural individualism? Using Google Ngram, you can get a graph showing the incidence of any one word or phrase in all books published since 1800. When Putnam asked Ngram the ratio of occurrences of the word ‘we’ to the word ‘I’, he found the results matched the bell curve – books were far more likely to use ‘we’ compared with ‘I’ in the 1970s, than at the lower ends of the curve. Hence Putnam’s handy nickname for his findings – ‘I-We-I’.

The move from ‘I’ to ‘We’ he calls the ‘Upswing’. He has a story about how it happened in America. Worried local communities explored ways to tackle the problem they realised they had. Learning from each other, they hit on a solution that emerged from around 1910: the public high school, offering four years of free secondary education for all, funded by local taxation. This turned out to be the main driver of rising living standards with well distributed benefits - with of course a significant reservation around race. Political leadership in the shape of the ‘progressives’ was important, but came later, following the grassroots movement. Putnam challenges us to find the models that will prompt the next upswing.  Rather than mourn the loss of community, he wants us to study what caused the rise through the six decades to the peak, and apply these lessons.

‘The Upswing’, to be published in April 2020, is sure to provoke much discussion on both sides of the Atlantic. Putnam has a great gift for simple narration of complex findings. The rising curve of  American ‘We’ tracked the USA’s rise to world power – how far, I wondered, was being ‘We’ to do with confidence in America’s ability to project force and authority, a confidence cruelly taunted by the plane-loads of bodies returning from Vietnam? And when deindustrialised towns voted MAGA for its promise of retrieving departed hope and prosperity, were they longing to be ‘We’ again?

In the UK, Giles Fraser (pictured - a Church of England Canon who calls himself a ‘Marxist’) writes on Unherd that (in the Brexit context) Leavers are for ‘We’ and Remainers are for ‘I’. Leavers, he says, live in places with ‘thick’ communities; Remainers are globalist liberals in ‘thin’ communities. This reflects Canon Fraser’s Anglican sensibility that loves the traditional Christianity of the parish system - where the church claims all by birth - and mistrusts ‘choice’ in a liberal society adapted to religious diversity. In modern conditions, this sensibility (it seems to me) plays out in nationalism and populism (which is not to suggest that Canon Fraser adheres to either of these).   

Yes, part of the Thatcher-Blair legacy has been neglect of the aspirations of those whose sense of community is rooted in lasting locality. But the greater peril now is denying the validity of the thin community – shape-shifting, transnational, the product of choice and individual moral agency.

[i] The Upswing: How America Came Together a Century Ago and How We Can Do It Again is to be published in April 2020 by Simon and Schuster

Saturday, 17 August 2019

I reject the idea of a Christian state. Why?

Responding to my review of his book Mission of God and related booklets, Joe Boot (pictured), head of public theology for Christian Concern, says that I oppose the Lordship of Christ. If that were so, I could not be a Christian, since the founding claim of Christianity is that 'Jesus is Lord.' But of course, being a Christian, I do believe that Jesus is Lord. 

Why then do I say that Christians should not try to work towards a state which says that Jesus is its Lord, with Christianity as the state's only religion? Why do I make this rejection the central argument in my book The Jesus Candidate?

The short answer is this. For the state to endorse Christianity as the official public religion, it must define what it means by Christianity - with both a legal definition (for courts to apply) and a political one (to guide public policy). Inevitably this will restrict the right of Christians to decide for themselves what they consider true Christianity to be. The solution to this conundrum is a liberal state - one that sees its role as being not to decide what is 'good', but to enable people to follow their own idea of the 'good life'.  We do not need to reinvent all this.  Four centuries ago, Christians worked this out and laid the foundation for liberal democracy - the key figure here being the New England Puritan Roger Williams. Persecuted by the Christian state in Massachusetts for opposing the laws that compelled attendance at state-recognised churches, he fled and formed the modern world's first democracy, in Rhode Island.  His book, The Bloudy tenent of persecution, published in London in 1644, provided the groundwork for the separation of church and state. Roger Williams' achievement is recognised on the Reformation Wall built in the early twentieth century in Geneva, where he is the only representative of the New England Puritans. But today shockingly few British evangelicals have even heard of him, and so are open to be persuaded that it was Williams' authoritarian oppressors - the advocates of a Christian state - who were the  authors of modern liberty.

It may be objected that my argument is political, not theological. What does the bible say? Doesn't the bible call for a theocratic state? It does not. The state is permitted but not prescribed, and the story of state formation in the Old Testament warns against the claim the God rules directly in the state. My short commentary on three passages explains this in a bit more detail.

Joe knows, but does not agree with, my argument (he thinks the idea that the Christian state will persecute Christians is a 'non-sequitur'). He makes three accusations that might explain my position. I am (he says) an anabaptist (and a follower of John Howard Yoder), a bureaucrat and a progressive liberal (impressively hard to be all three at once!).

The Anabaptists (so-called 're-baptisers') rejected the validity of the infant baptism that was compulsory in most jurisdictions during the 16th century Reformation. Their loose, dispersed movement tried with some success in the face of brutal persecution (and at least one disaster of their own making) to promote adult (believers') baptism and create churches outside state control. In the twentieth century, Yoder and the 'Neo-anabaptist' school identified the Anabaptist legacy with Mennonite evangelicals who are pacifist and reject Christian involvement with the state (if you want to know about the 'disgraced' bit, google it.) His influence extends to the likes of Stanley Hauerwas (not a baptist), John Milbank (likewise) and even the now fashionable Rod Dreher in seeing 'God's politics' as the church being faithfully itself and not engaging in practical debate about the political settlement which enables Christians to live freely. I do not agree with this - though I do agree that the Lordship of Christ is to be experienced and expressed in the collective life of the church, the 'body of Christ'.  I argue that one (not the only) strand in the Anabaptist legacy passes through Roger Williams and into the early English baptist movement to lay the foundation for liberalism. This is not accepted by some Anabaptist-minded friends but I find they are ready to discuss the character and legacy of the movement without vituperation. I am working on a publication to put a case for a rethink of the Anabaptist/baptist origins of liberalism, with a close look at the 1646 London confession - please sign up for my occasional newsletter for a link to this paper when it appears. 

Some 'bureaucrats' whose paths I've crossed would be surprised to hear I was one of them! As Joe knows, most of my career was in the private sector, as a trainer and consultant concerned with shifting power over public services to neighbourhood and community groups. I think what he means by 'bureaucracy' here is government by people with expertise. Neither in principle nor practice am a bureaucrat (but I do think that there is space for Christian social commentary informed by people who actually know stuff about taxation, healthcare, education and so forth.) 'Progressive liberalism' may mean belief in a universal tendency to moral improvement - what the philosopher John Gray calls 'meliorism'. It may refer to the version of 'liberalism' that emerged in response to the first world war and the great depression, with a powerful role for state intervention and regulation in restoring prosperity and trade, for example in the New Deal in the USA and the post-war international institutions.  Joe seems to say that (for him) this term actually means 'cultural marxism'.

Joe thinks I want to 'save Britain' from the 'Christian Right' (I prefer the term 'Religious Right' since its defining claim is that religion is the foundation of all politics) - specifically Christian Concern and the Christian Institute, who want to restore a Christian state and use 'religious freedom cases' to this end. The Jesus Candidate includes an analysis of twelve court cases featuring claimed anti-Christian state action. Neither body has ever disputed my account (and both had many months' notice of publication and an invitation, not accepted, to comment on the draft.) I show that some (not all) of these twelve cases are misrepresented in the right-wing press, are pursued mainly for publicity (even at the expense of weakening a case in court), and have little justification in terms of Christian thought and practice. Sometimes there is a need for legal action to protect the freedoms of Christians along with others (for example in the case of Ashers bakery) but arguing weak cases for propaganda purposes while stridently demanding the award of baseless 'rights' is a distraction from the task of maintaining the essential Christian voice in the public square. But my biggest worry about the Religious Right is its part in the international, right-wing movement to undermine the liberal state and multi-state structures - what, in the end, it really promotes is religious nationalism.

What's this about the National Secular Society (NSS)? The issue that brought me into its orbit illustrates my argument about the threat to Christians from a Christian state. One of the cases studied in The Jesus Candidate is Bideford Town Council, where 'Christian' prayer (one time Catholic, another Quaker, etc) was placed on the agenda for meetings (thus taking place during, not before, a meeting). The courts ruled that prayer could not legitimately appear on the agenda. Christian Concern and the Christian Institute agitated against this finding and the final days of the Cameron-Clegg coalition government saw legislation to allow prayer on the agenda at council meetings. Muslim-dominated councils started to pray, in Arabic, in their meetings. Christian Concern objected to the 'pluralism' at work here, arousing the derision of the NSS. I submitted a comment from a Christian perspective. 

The  NSS review (by two different writers) of my book  illustrates the tensions within secularism. Does it mean adopting an alternative state-sponsored anti-religion, along the lines of the French Revolution's cult of reason? Or does it mean a genuine state neutrality, whereby a range of faith positions are heard but no one religion has the right to shape state policy? The Religious Right holds that the latter position is impossible since all law is the expression of a shared public faith and accordingly secularism must default to become an anti-Christian public religion: court cases are then assembled in evidence. 

I think that Christianity has always offered an alternative: as the early church said, Christians would honour and obey the Emperor without worshiping him as god, since everyone has the human right to worship in the way they choose without threatening the integrity of the state. The 'After Christendom' argument is about how we recover this vision and apply it in today's conditions.

Go to the The Jesus Candidate to buy my book for £6.75 including postage (UK first class). 

Thursday, 29 June 2017

Leviticus weaponised: the assassination of brother Tim

Tim needed to talk about Brexit ...
As leader of the Liberal Democrats for the 2017 election, Tim Farron needed to talk about the party’s offer to anti-Brexit ‘Remainers’ – a second referendum - and how income tax was the fair and realistic way to pay for better healthcare.

Instead, he was relentlessly pressed for his analysis of Leviticus. You work on the Sabbath (yes), you eat shellfish (no, actually) so why won’t you say if gay sex is a sin? Eleven times in four minutes, LBC radio’s Vincent McAviney demanded this instant, on-air exegesis of the third book of Moses.

...but Vince had other ideas
Tim Farron’s commitment to equality is unquestionable – he voted in favour of same-sex marriage, and Pink News found him ‘outspoken and consistent’ in backing equal rights as party leader. To Vincent of LBC, he tried to explain the principles of church-state separation, and the consequent inappropriateness of politicians issuing judgements on matters of faith, but it all seemed futile. What sex does Tim bless? He doesn’t answer! He won’t say! Eventually, like a broken hostage dragged from his cell to face the video recorder, Tim uttered the words his tormentors demanded: Gay sex is not a sin.  

One attacker was David Laws, the former Liberal Democrat minister and MP suspended from the House of Commons in 2011 for ‘a series of substantial breaches’ of expenses rules when he claimed ‘rent’ paid to a ‘landlord’ who was, in fact, his partner. The reason for the deception, he said, was being ‘very keen not to reveal information about my sexuality - not least to MPs from other parties.’ Now he accuses his leader of merely ‘tolerating’ and ‘forgiving’ him while promoting ‘the dangerous myth that our society can respect and embrace people in same sex relationships, while believing their activities and character to be in some way immoral’. But if Laws wields the bludgeon, a more subtle thrust comes from the rapier of Vince Cable, now back in Parliament and Farron’s likely successor as leader of the Liberal Democrats. He gave Sky TV this analysis of Tim’s position:

The problem he has as an individual, and it’s true of a lot of evangelical Christians and Roman Catholics, is that their religious faith has a certain approach to these problems but they are also public figures who have to represent their constituencies, which are much more diverse.

Tim Farron does not say that he ‘tolerates’ or ‘forgives’ gay colleagues or that he advocates any public sexual morality. He says that his liberalism means all are equal; as a Christian he does not judge anyone. Vince Cable suggests that he is not being truthful about his position: that actually he wants to enforce a ‘certain approach’ but cannot do so because of social diversity.

What is going on? The Liberal Democrats won 57 seats in the 2010 general election, then lost all but 8 of them in 2015. In between, they sat in Coalition government with the Conservatives. Tim Farron was not a Coalition minister, and voted in Parliament against his leadership on two controversial Coalition policies: increased student fees (a policy directly contradicting the party’s election promise) and the ‘bedroom tax’ (reduced benefit for tenants with ‘spare’ bedrooms). He won the leadership in 2015 against Norman Lamb, a former Coalition minister. Free of Coalition baggage, Tim Farron could purge the party of its stain while big-hitting former ministers like Vince Cable served time outside Parliament. Theresa May’s snap election promised an early return, but a strong showing by Farron’s Liberal Democrats would have been a rebuke to big-name ex-ministers. The outcome – the party still standing, but Farron dead and buried – is ideal. Leviticus was just the weapon.

But, when all is said and done … IS gay sex a sin? Why is this so hard to answer? ‘Sin’ in the bible means ‘missing the mark’ or falling short of God’s standards. Jesus faced, and denounced, a dominant religious elite holding that the Law of Moses defines a series of actions as ‘sins’, so conforming to a set of rules is the way to avoid it. Christians deny this. Sin is an intrinsic condition of humanity, basically consisting in rejecting the true God and making false gods (idols); it is not possible to live free of sin but it is possible to be forgiven through faith in Christ. The idea that a particular sexual practice is ‘a sin’ is meaningless: sin, at root, is disbelief, and things flow from that. But the New Testament also says that when people become Christians, they join free associations of believers known as churches. There are standards of conduct that distinguish those groups, and sexual behaviour is part of those. Here the question ‘is gay sex a sin?’ acquires meaning, more precisely as: ‘is a faithful sexual relationship with someone of the same gender compatible with a Christian profession of faith?’ Asking the leader of a Parliamentary party to comment implies that it is the job of the state to arbitrate on theological matters – as in the times of Emperor Constantine or King Henry VIII.

This is what Tim Farron means when he says that he is not a theologian, and that as a liberal he believes in church-state separation and equality. Vincent’s on-air question is an internal matter for churches, and the correct position for a church member when acting in the capacity of a public office holder is ‘no comment.’ He expects a liberal society to uphold his own, and others’, right to maintain this view. The demand that he answer is a violation of his rights, of liberal principles, and of religious freedom.

Tuesday, 30 May 2017

Mis-step on Maycare?

In Britain now, about 10 million people are aged over 65, traditionally time to retire from paid work. In 2017 these ranks are swelled by those born in 1952 - men and women who turned eleven in 1963, the year the Beatles began their string of chart-topping hits. 

Welcome, generation Please Please Me, first fruits of the post-war welfare state. It is a good time to join us!

Since 2008, the real household incomes of over-65s have risen by around 10%, while the rest have mostly flat-lined. One reason is a transfer from workers to pensioners through a political promise called the ‘triple lock,’ implemented by the 2010-15 Coalition government: this guarantees an annual increase in the state pension by the greatest of price or wage inflation or 2.5%. 

Politicians long ago worked out that the way to win elections was to please the older people who are much more likely to vote than younger generations.

In 2015, for the first time in 23 years, and somewhat against expectations, the Conservative party won an election outright. One momentous outcome was the referendum leading to Brexit, hence the fall of David Cameron as Prime Minister, his replacement by Theresa May, and the ‘Brexit election’ called for June 8th, 2017. The original scale of expectations for this poll can be measured by the fact that the Opposition leader’s principal backer, head of Britain’s largest trade union, told a reporter that for Labour to win 200 seats in Parliament would be satisfactory: a result which would be the  worst for Labour since 1935, leaving May with a mandate as big as was enjoyed by Tony Blair.

On May 18th, May presented her manifesto, and Conservative expectations took a dip. After much speculation about the ‘triple lock,’ the decision to replace it with a ‘double lock’ from 2020 was no big surprise. This still guarantees a state pension rise of the greater of either price or wage inflation, which (with real incomes now falling again) could well mean a continuing transfer from workers to retirees. The ‘winter fuel allowance’ would henceforth be ‘means tested’ – this tax-free bonus (usually £200) is paid to all pensioners, supposedly to counter extra heating costs met by older people, even the ones who pass their winters on the shores of the Mediterranean. Again, no huge shock. 

The surprise, landing May in the most serious political trouble she has yet faced as Prime Minister, was to reverse the Cameron government’s policy on funding care for elderly people. Opponents dubbed her proposal a ‘dementia tax’; she countered that a review was needed because of the growing elderly population. Neither of these is, I suggest, a particularly illuminating analysis.  

What are we dealing with here? According to figures from Age Concern, about 400,000 people over 65 live in residential care homes, and another 372,000 get substantial amounts of care at home – so little more that 7% of the age group rely on such care (even among over-85s, only one in six lives in a care home). This all costs about £22bn a year, of which about £8bn is paid by the state. This is ‘social care’ and unlike health care (a fine and contested line) it is means-tested. The great majority of pensioners are debt-free home-owners, so have average household wealth around £200,000, the product of rising house values. If they go into residential care, the value of their home is used to fund their stay, down to a ‘savings floor’ which is usually £23,250. If they stay in their own home, its value is not considered part of their wealth. In twenty years’ time, forecasts are for a 40% growth in the numbers of over-65s including a doubling in over-85s. How many of these will need social care is a matter more of guesswork than informed judgment. But we do know that most will, as now, be debt-free home owners, with wealth enough to cover the need (the implications for the Health Service are another matter).

The problem is not so much the numbers as the politics. Old people want to pass their homes to their families, and the random way in which a disabling condition can wipe out this value is experienced as deeply unfair. The Coalition government passed the problem to an Oxford economist, Andrew Dilnot. His committee proposed that the savings floor be increased to £100,000, and that users be expected to pay for their care only up to the value of a cap, suggested as £35,000 for total costs over a lifetime. This, he thought, would add £2bn to public costs annually – a significant increase in the cost of social care, but a trifle against the cost of the National Health Service (NHS), which takes between four and five days to burn its way through £2bn.

The 2015 Conservative manifesto promised to implement Dilnot but with a higher cap - about £70,000 – and with the existing, rather than a raised, savings floor. Payment could be deferred until death so that ‘no one has to sell their own home’ and all would be ‘protected from unlimited costs.’ They also promised to introduce these changes in 2016. Having won the election, they deferred the changes to 2020. 

Quite unexpectedly, May chucked all this out in her manifesto for the Brexit election. The preceding proposals, it said, ‘benefited a small number of wealthier people.’ Instead, she offered the full Dilnot floor of £100,000 – but there would be no cap, and care at home would be subject to the same savings floor test as residential care, with the cost charged to the estate at death. Four days later, May announced that there would, after all, be a cap to be set after consultation, and there things rest for now.

Labour’s manifesto – presumably written on the assumption that the Cameron plans would go ahead in 2020 - suggests no early changes to the payment system. It wants to add £3bn to care budgets, mainly to pay for better terms for staff and meet less acute needs. For the long term it talks about a ‘National Care Service’ integrated with the NHS, with funding to be a matter for consultation.

Theresa May’s surprising pledge seems to reveal significant instincts in the team of close advisers said to have thought it up. The idea that a pensioner with housing equity above £100,000 is ‘relatively wealthy’ challenges the compact with the middle class that has underpinned democratic politics since 1945. Under ‘Maycare’ a modest level of protection is to be assured – this is the good the state can do – at the expense of more lavish protection shared by the middling majority. Putting such detail into a manifesto can only have been done with the intention of securing this principle against all comers in government: in conceding a possible cap, May has insisted that the ‘principle’ is what stands. If so, what next for health, education, and the rest run on the opposite principle – that the modern, democratic state is a vehicle for all citizens to share the costs of services that meet the aspirations of the ‘relatively wealthy’ majority?

So what is the answer? The central principle here is that of ‘social insurance.’ A proportion of us will face huge costs of care in the closing years of life. We do not know how many will be impacted or at what cost, making the risk uninsurable in the private market unless politicians do something to contain the long-term risk. There is an upside to this, at any rate for the next forty years or so – most of those facing the risk have, or will have, substantial equity in residential property. So what makes sense? If we do not want to share the risk, so be it – leave us with a smallish cushion and let the losers take the hit. If we do want to share the risk, then we can pay more tax. The obvious source is inheritance tax (IHT). The most recent annual figures show that, of 267,000 estates valued for IHT, 248,000 paid no tax at all. On a total worth of £80bn, the government collected little more than £4bn in tax. Housing equity amounted to £40bn, but no tax was paid on housing assets of £33bn. For me, an IHT levy to build a dedicated fund to compensate for exceptional care costs in later life is the logical way to meet the challenge. But of course, I am not the first to suggest this – when the politician Andy Burnham floated the idea, he was accused of charging a ‘death tax’ and no party has dared put it forward since. 

But what, exactly, is wrong with a death tax? As someone once said, let the dead bury the dead. 

Wednesday, 7 December 2016

The Icing on the Gay Cake: what's the Appeal?

The McArthurs ...
The case of Ashers bakery and the ‘Gay Cake’ has prompted an outcry not just in Christian circles, but also from liberal sources, including the Guardian and Independent newspapers, as well as Peter Tatchell

Many find confirmation here of anti-Christian bias in equality law – a finding I dispute in The Jesus Candidate. 

The Ashers appeal ruling came too recently to have been examined in the book. So what is to be learnt? Does it change anything as far as the arguments go in The Jesus Candidate?
... and the icing 

The facts are straightforward. Same-sex marriage was recognised in most of the United Kingdom in March 2014. On 29th April 2014, the Northern Ireland Assembly voted, for the third time, against allowing same-sex marriage in the Province. 

... on the cake
A few days later, Gareth Lee placed an order for a cake. It was to be eaten on Friday, 17th May, at an event planned “to mark the end of the Northern Ireland anti-homophobia week and to mark the political momentum towards legislation for same-sex marriage.” The cake would be iced according to Mr Lee’s design, with the slogan “Support Gay Marriage” and the logo of the “QueerSpace” group to which he belonged. He placed the order with Ashers Bakery, a limited company with nine shops around the Belfast area, and a net worth of about £1.4million. Its directors are Mr and Mrs McArthur. The firm is equipped to scan an image and reproduce it on the icing of a cake. 

After accepting the order, the bakers received the design. They then refused the order, and refunded the deposit, because, as Christians, they were not prepared to place the particular message on the cake. Mr Lee was able to get the order fulfilled elsewhere, in time for his event. The Northern Ireland Equalities Commission decided to support Mr Lee in seeking redress for discrimination on grounds of sexual orientation. The Christian Institute supported the bakers’ defence. The case came before District Judge Brownlie in the County Court. She delivered judgment on 19th May, 2015, in favour of the claim, and awarded damages of £500. The defendants appealed. The Northern Ireland Appeal Court upheld Judge Brownlie’s ruling, in its findings published on 24th October 2016.

The question is whether the refusal to bake the cake amounted to unlawful discrimination. The courts looked at three issues.

1. The McArthurs said that they did not discriminate against Mr Lee, since his own sexuality was not relevant and they objected only to a message. So was this discrimination lawful? The court said it was not, on the grounds of “associative direct discrimination.”  It did not matter whether Mr Lee himself was gay or not. The McArthurs refused to fulfil the order because of its association with gay people generally. As the appeal court put it:

The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. .. 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 orientation … There was an exact correspondence between those of the particular sexual orientation and those in respect of whom the message supported the right to marry. This 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.
2.     The bakers objected to the message because it was against their deeply held religious convictions – don’t they have a right in law to uphold these?  The courts found this question raises matters already resolved in previous cases, especially the Chymorvah Hotel’s famous refusal to offer a night in a double bed to two men. The right to freedom of religion is to be balanced with others’ rights. The Chymorvah hoteliers’ religious beliefs did not entitle them to confine their offer of a shared bed to heterosexual married couples, and ignore the rights given in law to their gay customers. Likewise the McArthurs’ undoubtedly genuine faith did not entitle them to refuse a service if this overrode the rights of gay people to equal treatment.
3.     By being required to ice the cake, the bakers were forced to support a view with which they did not agree – was this ‘compulsory speech’ violating their rights to free expression?  The courts did not think that, by icing a cake with a message specified by a customer, they would be indicating personal support - real or apparent - for the message. The county court said that “what the Defendants were asked to do did not require them to support, promote or endorse any viewpoint.” Evidence showed that the bakery often iced messages which the McArthurs did not personally support.

The Northern Ireland Attorney General has sought leave to appeal on constitutional grounds. Will John Larkin QC try to persuade the Supreme Court of the merits of the same argument that failed to convince the Northern Ireland Appeal Court? There he submitted that, under devolution legislation, the Northern Ireland Assembly cannot make laws that discriminate on religious grounds; that, by being required to fulfil Mr Lee’s order, the bakers were penalised for their religious views; and therefore that the (Northern Irish) legislation applied in the case cannot be valid. This sounds like the same argument previously heard, and rejected, by the courts. Religious freedom does not – the courts have conclusively found – imply a right for employees and businesses to pick and choose the tasks they do or the customers they serve.

But I don’t think the matter should end there. As the courts clearly understood, the bakers were asked to ice a slogan for use in a political campaign against a decision of the Northern Ireland Assembly. The McArthurs agreed with their legislature’s decision, and did not want their work used in a campaign against it.  Their view would be, I guess, that reserving marriage, as a legal concept, as a monogamous relationship between two people of opposite genders is to the ‘benefit’ of all, regardless of individual variations in sexuality or sexual preference. The courts thought that overturning the decision of the legislature would be to ‘benefit’ gay people and so refusing services with the effect of supporting such opposition is unlawful discrimination. 

This sounds like judicial review by proxy. If Ashers bakery is guilty of unlawful discrimination, then the real issue – surely - is the Assembly’s decision, and this should have been the matter before the courts.

There are, it seems to me, risks in the way the Ashers ruling deploys ‘associative discrimination’ in the context of a political campaign. Under the Equality Act 2010, it is unlawful to discriminate because of “religion or belief.” This Act does not extend to Northern Ireland, where an added complication is that it is unlawful to discriminate on grounds on “political opinion” – a minefield the courts avoided when they based their judgment on the issue of sexual orientation. But mainland courts have already had to consider if, and when, a political viewpoint amounts to a protected “belief.” Sooner or later, it seems to me, someone will refuse services for a political campaign - and then face threatened action for ‘associative discrimination’ against adherents of the beliefs advocated by the campaign.

The case is not credibly, at any rate in my view, an instance of religious discrimination or denial of free speech. No one could sensibly consider the McArthurs authors or editors of text processed through their scanning and icing machines. 

Nonetheless it will be disappointing if the Supreme Court does not take a look at the matter. The judge-made doctrine of ‘associative discrimination’ is clearly useful in dealing with someone denied, say, a job or a home due to prejudice aroused by family or social connections. 

But can it really bear the load added by the Ashers ruling - an obligation to enter into a business relationship with a political campaign against a decision made by an elected parliament?