Gordon Jackson QC
- from the West Highland Free Press
I HAVE BEENinstructed in connection with a proposal by
Caledonian MacBrayne to introduce Sunday ferries between
Stornoway and Ullapool.
At present the regular ferry between Stornoway and Ullapool
does not run on a Sunday. I assume that this is because of the
religious feeling on Lewis against a Sunday ferry and a decision by
Caledonian MacBrayne to give effect to that.
I am not at this stage considering whether or not, in general
terms, Caledonian MacBrayne can be prevented from running a
Sunday ferry if they wish to do so. The precise issue for the moment
is the apparent reason given by Caledonian MacBrayne as to why
they feel obliged to begin this service.
Put shortly, Caledonian MacBrayne seem to be suggesting that
they are obliged to provide this service because of the Equality Act
2006 and indeed claim to have Counsel’s Opinion to that effect. I
have not had sight of any such Opinion and do not know precisely
what is being argued but Caledonian MacBrayne have made
reference to Section 46 of the Equality Act which makes
discrimination on the grounds of religious belief (which includes a
lack of belief) unlawful. The argument seems to be that Caledonian
MacBrayne in not running a service would be unlawfully
discriminating against those people who wish the service and be
doing so on the grounds of religious belief.
I find it very difficult to accept or indeed fully understand this
argument. It is certainly unlawful to discriminate in the provision
of services on the grounds of religion. It is, however, in my opinion,
quite clear what that truly refers to. If a service is being provided,
i.e. a ferry is running on a particular date, it would be unlawful to
deny that service to any person because of their religious belief or
lack of it. Put simply, it would be unlawful to have a ferry running
but deny access to, for example, a Jew or Catholic or for that matter,
an atheist.
It is in my opinion an entirely different matter to decide for
whatever reason that a particular service will not be provided to
anyone. In that situation all are being treated equally in that no
person of any belief or none can travel on the ferry.
It cannot, therefore, in my opinion, be argued that this anti
discrimination legislation places a legal obligation on Caledonian
MacBrayne to provide a particular service. Nor does it matter what
the reason for not providing the service is. Put another way, this
legislation cannot force any body or person to provide a service
which they do not wish to provide at all.
I should, of course, re-state that I am not at all suggesting that
Caledonian MacBrayne can be prevented from providing this
service if they so wish. I do, however, disagree with their apparent
justification for so doing.
GORDON JACKSON QC
Advocates Library, Parliament House,
EDINBURGH, EH1 2RF
2nd June, 2009
