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  • Tag: Conscience

    • Clarity from the Supreme Court

      Posted at 12:13 pm by ionainstituteni
      Oct 22nd

      On 10th October 2018 the Supreme Court, the highest UK court,  delivered its much anticipated judgement Lee v Ashers Baking Co Ltd [2018] UKSC 49.

      The story has been well rehearsed – Ashers is a company owned by committed Christians, the McArthurs. Mr Lee was gay and worked for Queerspace. He was an existing customer of the bakery and in May 2014 wished to have the slogan “Support Gay Marriage” iced on a cake he ordered. This was refused and the charge of discrimination commenced, aided by the Equality Commission NI, which sought to test the legal boundaries of discrimination and confirm that Mr Lee had been discriminated against on the grounds of sexual orientation and/or  political opinion. Mr Lee succeeded in the County Court and NI Court of Appeal for reasons which were somewhat obscure to lawyer and layman alike.

      The Supreme Court’s  judgement, however,  is a model of clarity. It held, regarding discrimination on the grounds of sexual orientation, that:

      1. This was a case of “direct discrimination or nothing.”

      2. Direct discrimination is by definition, treating people differently.

      3. The correct comparator was other people, not different messages.

      4. The circumstances of any comparison needed to be “the same or not materially different.”

      5. Support for gay marriage was not a proxy for any particular sexual orientation, since anyone of any orientation could support it.

      Lee v Ashers therefore differed from James v Eastleigh [1990] 2AC 751 – free swimming related to differing retirement age for men and women – and Preddy v Bull [2013] UKSC 73 (B&B accommodation only for heterosexual married couples). The complainants in these cases were adversely affected in law, because of a proxy for the protected characteristic.

      6. There was no associative discrimination here – evidence of Ashers previously serving gay customers including Mr Lee himself and  employing gay staff, all put paid to that.

      7. “In a nutshell, the objection was to the message and not to any particular person or persons.”

      The Supreme Court made it abundantly clear that in this case, the cause of equality was done “…no favours to seek to extend it beyond its proper scope.”

      The Supreme Court also examined discrimination on the grounds of political opinion. It accepted that

      1. Support for gay marriage was a political opinion.

      2. It pointed out that discrimination can arise irrespective of motive.

      3. The legislation was designed to protect those who held an opinion from less favourable treatment, as compared with others who did not hold such an opinion.

      4. It was clear that Ashers had previously served Mr Lee in other ways. Likewise they would have refused to ice the cake with this message, irrespective of the political opinion of the person asking for it. The Supreme Court took the view that it was not Mr Lee’s opinions or beliefs which resulted in the refusal of the order, rather:

      “The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not the man.”

      An interesting aspect of the judgement was how the Supreme Court dealt with the European Convention rights of the McArthur’s who owned Ashers, as opposed to the company itself. It concluded that in order to uphold the qualified ECHR rights of the McArthurs under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression), the company should not be found liable. This differed from saying that the company had Convention rights.

      Rather, to ensure that the McArthurs were not obliged to supply a cake iced with a message with which they profoundly disagreed or indeed be compelled to provide goods facilities or services expressing  a message with which they disagreed, unless justification was shown, the Convention rights could be invoked to protect the McArthurs, since to do otherwise would negate their Convention rights.

      IMPLICATIONS

      Significantly the Supreme Court was unanimous in reaching its decision. No dissenting voices confused the issue. Individuals are protected from compelled speech whether in icing, print, or orally. The groupthink mentality has been curtailed at least in the context of offering goods, facilities, and services.

      Whether this is a victory for religious or political freedom has already been widely debated. However most commentators agree that the Supreme Court has stood up for freedom of expression, something which unites Baroness Hale, Peter Tatchell and no doubt, supporters of Iona (NI), on a significant area of social policy.

      Shortly after she issued the judgement in Preddy v Bull, Baroness Hale gave a lecture at Yale Law School on Religion and Sexual Orientation: the clash of equality rights. She examined the case law on the subject and dealt with criticisms from the Archbishop of Canterbury and the Attorney General of Northern  Ireland on how  equality law had developed, particularly as it appeared increasingly to sideline religious belief or indeed fail to understand or show sensitivity to it.

      Baroness Hale defended the role of the courts by explaining that the Law Commission had dismissed calls to legislate against offending religious feelings. However, she noted in examining Canadian case-law, that provision had been made there for a “reasonable accommodation” defence in dealing with conflicts of rights. She also acknowledged that some Christians did feel a lack of respect for their beliefs and queried whether a more nuanced view would be better.

      She concluded:

      “I find it hard to believe that the hard line EU law approach to direct discrimination can be sustainable in the long run. But I am not sure how comfortable I would be with the sort of balancing exercise required by the Canadian approach.”

      Perhaps in Lee v Ashers we can see the arrival of some much-needed nuance into the conflict between competing rights through the mechanism of freedom of expression.

      Although the Ashers have been vindicated in this matter, there will undoubtedly be many more conflicts to come where rights will clash. Freedom of conscience in medical matters such as abortion and euthanasia is one which might benefit in part by this decision but I very much doubt if it will be the last word on conscientious objection.

      MARY J LEWIS BL

      Posted in Blog | Tagged Ashers, Conscience, Freedom, Gay Cake, Rights
    • Conscientious Objection: Individual or Institutional?

      Posted at 11:12 am by ionainstituteni
      Aug 15th

      In the aftermath of the abortion referendum, a lot of commentary has now focussed on the right to conscientious objection. This right is typically associated with article 9 of the ECHR and it is to the effect that one has freedom of conscience so long as the exercise of such freedom does not conflict with public order, health and morals, or the rights and freedoms of others. Accordingly, there are a number of activities that individuals, especially those working in healthcare, can object to and refuse to carry out, and abortion is one of them.

      So far so good; health minister Simon Harris has guaranteed the right to conscientious objection to individuals. However, a rather thorny issue has emerged and that is whether or not the right to such objection extends not only to individuals but also to institutions.  Harris has stated that it only applies to individuals, whereas Baroness Nuala O’Loan has argued that it applies to institutions as well (https://www.irishcatholic.com/baroness-oloan-rejects-simon-harris-conscientious-objection-definition/). In Ireland there are a number of Catholic hospitals committed to a Catholic ethos and culture which is clearly inconsistent with the provision of abortion. Hence, the issue over whether or not an institution can conscientiously object is a pressing one.

      A rather simplistic view would be to say that insofar as an institution is not a person, it does not have a conscience, and so cannot avail of conscientious objection. Indeed, one may argue that the notion that an institution can exercise a right that only applies to individuals is absurd. But this is a somewhat simplistic view for the following reason.

      Many public institutions adopt a charter which signifies their philosophy and thereby seals that institution with that identity. We don’t have to look too far in the UK to see this to be the case. The NHS was set up with the ideal that the care for the sick and vulnerable is the responsibility of all of society and so should be paid for by society; access to good healthcare should be based on clinical need and not wealth. Hence, UK citizens can avail of health care in any NHS hospital and facility given their needs. If NHS hospitals only provided medical treatment, they would be no different from private hospitals which provide the same. Rather, NHS hospitals provide medical treatment without distinction of material riches, and so they judge that each member of society has as much a right to such treatment as any other. This is a philosophy that many in the medical profession find attractive and indeed will pursue employment in the NHS rather than seek work in the more lucrative private sector. Indeed, such health professionals see a nice accommodation between their paid employment and their general outlook, so that the one tallies with the other.

      The free medical care provided by the NHS permits many health professionals to live according to their conscience. And this is not just the case for health professionals; there are many public bodies and institutions which enable the individual members to live in accord with their conscience, e.g. universities, local government, charities etc.  The philosophy characteristic of an institution thereby enables its members to live in accord with their conscience. Accordingly, it is not only important that an institution have a particular philosophy which signifies the culture in the place, but that that philosophy be protected so that the conscience rights of the people working there be protected.

      We turn then to the right of conscientious objection, and given that the ethos of an institution is necessary to protect the conscience rights of those who work at that institution, that institution then ought to be able to object to any command contrary to that ethos, and this so as to protect the conscience rights of the individuals who work there. So to go back to the NHS example, the heroic doctor/nurse/midwife who opts for NHS work instead of the more lucrative private work would rightly object to the demand that NHS facilities give preferential treatment to those better off. And the NHS facility as a whole has a right to resist such a mandate in order to protect the rights of those staff who work there because of their belief that when it comes to health material riches should not determine preferential treatment.

      In the case of Catholic hospitals then, we have a Catholic ethos which is a pro-life ethos, such that all human life, from conception to natural death, is worthy of respect and to be protected in a medical sense. Medical professionals who have trained in order to uphold that ethos and in turn take on work at such a hospital are exercising their freedom of conscience to pursue good work consistent with pro-life attitudes. The Catholic ethos of the hospital enables them to do that. Hence, if the Catholic ethos of the hospital is threatened, or indeed, if the pro-life value of the hospital is threatened, then the conscience rights of those who hold a pro-life view at that hospital are threatened. It follows that if the Catholic hospital cannot object to a command which undermines its pro-life ethos, then the conscience rights of the medical professionals working there are not being seriously upheld. And indeed this is often the case, since whilst one medical professional can object to direct participation in an abortion, he or she is often required to make a referral or arrangement within the same facility so that the abortion may occur, thereby becoming complicit in the abortion itself. Therefore, it is necessary to allow for institutional conscientious objection so as to enable the conscientious objection of individuals.

      Dr Gaven Kerr

      Posted in Blog | Tagged Abortion, Conscience, Health
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  • Iona NI Board

    PATRONESS

    Baroness Nuala O'Loan DBE, MRIA


    BOARD

    Chair:
    Alban Maginness BA (Hons), LLM, BL

    Secretary:
    Mary Lewis BL

    Board Members:
    Brett Lockhart QC
    Declan O’Loan BSc, PGCE, MBA
    Tracy Harkin
    David Quinn
    Éamonn Gaines


    PERSONNEL
    Leah Gaines, Office Administrator


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