CR spoke with Andrew Marsh about Baroness Hale's rethink

Andrew: The Deputy President of the Supreme Court is a very high judge and she has acknowledged that she was involved in this precise case, so it gives it extra significance. She is saying that she's recognising that there are very profound issues at stake in this case and in a number of others like it. In an earlier speech, I think she said, "It's not difficult to see why the Christians feel that their religious beliefs are not being sufficiently respected" and she goes on to discuss that. She also goes on to discuss how the law deals with these issues, where in a sense increasingly we have the possibility of competing rights, particularly that's been in the area of freedom of religion and belief - and freedom particularly for Christians to live and to speak in accordance with biblical truth, in accordance with the teaching of Jesus Christ on the one hand - and particularly, though not exclusively, the clash with the sexual orientation rights.

I think that what's significant is that she's recognising that there are very big challenges, in this area; that this is an important area of how we live alongside one another in society. In addition to that she's recognising that this is an area where the law is not fully developed, I think it would be fair to say that. I think she concludes her speech by saying, "I'm not sure that our law has yet found a reasonable accommodation of these different strands; the story has just begun".

I think it's encouraging that such a senior judge is recognising and grappling with the challenges and is saying that there is more work to be done in this area; we haven't arrived there yet. That opens up the possibility of a much fairer settlement between, for example, Christians and others in society.

Heather: How unusual is it for something like that to happen - for a judge to have made a ruling, in this case Baroness Hale, and then to say afterwards that she may have made a mistake?

Andrew: I think she's recognising that there is nuance and there's much greater debate to be had in light of this particular case and many others like them. We at the Christian Legal Centre are dealing with these kind of cases day in, day out. It is a significant intervention and it's encouraging that senior judges are not only thinking about it and recognising that there's a challenge and that we haven't yet found the ideal solution, but they're prepared to speak about it in public. We need to recognise that's one of the consequences of these cases that have been taking place especially over the last decade or so. No-one longs to go to court or to be involved in that process and there is a huge burden that it brings, as the Bulls and others will be able to testify. These cases, as well as trying to resolve individual injustices, have played a role in highlighting that there is actually a real issue that is affecting real people on the ground and in that sense I think it's encouraging that that is being recognised. What we want to pray for and to call for in society and politically and in the media is for this problem to be engaged with properly, not to be brushed under the carpet, and for realistic and fair solutions to be brought into play to address it.

Heather: She also acknowledged that the laws that ignore Christian consciences might not be sustainable. What does 'sustainable' mean in relation to this and do you agree?

Andrew: I think that's right. That's another way of her highlighting that the current framework that we have is not really up to the task. The current approach - more generally beyond the law as well - the current approach to equality and diversity, for want of a better term for the general situation, is not really working to deliver the kind of society where people can live alongside one another being true to their identity and yet respecting the identity of others.

What we often find is the equality and diversity agenda, far from encouraging respect and people living alongside one another, whilst being open about who they are, actually encourages people to become siloed: to hide, in a sense, who they are - and many people find they feel that pressure. More specifically, as well as the general equality and diversity agenda, the legal framework that we have, in terms of discrimination law and the way that that's presented in things like the Equality Act, that also is not up to the task, or certainly the way that it's been interpreted thus far is not up to the task, of resolving these issues in a legal context. So I think she is highlighting that and highlighting the fact that the current approach is not sustainable and that there's going to be greater and greater awareness that it's not delivering.

One of the areas of interest that she's highlighting is the concept or notion of reasonable accommodation, which is, broadly speaking, a responsibility on employers and organisations to seek to reasonably accommodate those of different viewpoints; certainly of different beliefs and religions, and to demonstrate that they go as far as they can to accommodate difference, where it's not going to harm the freedoms of others and where it's not going to place an undue burden on the organisation. A move in that direction would bring, I think, positive developments for Christians, and others, in some of these cases.

I think she's also highlighting the importance of a change in focus in terms of focusing on the positive of freedom of religion and belief and not only on the negative of anti-discrimination. I think she's hinting that she sees mileage in focusing on and seeing the significance of protecting freedom of religion and belief; not only trying to arbitrate in so-called clashes of discrimination. I think there is some mileage in pursuing that.

Heather: Also in a highly unusual move she and her fellow judges have ordered that the Bulls will not be liable for legal costs - and that's obviously after ruling against them. How significant a move is that?

Andrew: I think that is significant because again it recognises, in a sense, the importance of the case and the importance of the case more widely to the legal community and to the legal framework in grappling with these issues.

These are issues that judges - and very senior judges - are interested in and feel are important for arriving at a better settlement as society changes. I think that the treatment on costs reflects that and reflects the fact that it's important that this case and others like it come to the most senior courts in the country. Some of them will go beyond that to the European Court of Human Rights too because issues that affect not just Christians, or not just a particular group in society, but issues that actually face the whole of society and how we're going to deal with important things like conscience and freedom of conscience are at stake here.

Heather: Finally, in relation to all that's happened and all that Lady Hale has now said, could Mr Preddy and Mr Hall justifiably feel they have been undermined by the courts and UK law, that they should receive one verdict but, after that is given, all this change of heart happens outside of the courts?

Andrew: Obviously I can't speak for Mr Preddy and Mr Hall - I know that they greeted the judgement at the time and felt that it was a vindication for them. I think that what we have to recognise here is that the situation that we're facing is not just about the individual cases in isolation: it's also about the wider picture and the fact that we are grappling with principles that are going to affect far more than just the particular individuals whose cases come to these high courts. I think that Lady Hale's comments are a recognition that the principles at play and trying to work out how they interrelate, transcend any one particular case. I think it's encouraging that she is indicating that we are not there yet by any means and that the courts are not there yet by any means. She says the story has just begun and that there is continuing process to find a better settlement than we have at the moment.