LAWYERS don't come cheap. One thing for sure about the current controversy over Caledonian MacBrayne’s Sunday ferry service between Stornoway and the Scottish mainland is that learned counsel will not come out of it empty-handed.
The issue of travel to and from the Western Isles on a Sunday is a contentious one. This struggle has been going on for years, whether in relation to planes or boats.
This time, the public wrangle is about the legal advice given to the ferry operator and also to the Lord’s Day Observance Society.
CalMac decided to make public the legal advice it received, after the Lord's Day Observance Society released the advice given by its counsel, Gordon Jackson QC. Mr Jackson questioned the ferry operator’s interpretation of the rules. He said that the Equality Act of 2006 was intended to prevent certain communities or groups of people from being singled out. It does not apply, he believed, when everyone is being treated in the same way.
“It is certainly unlawful to discriminate in the provision of services on the grounds of religion,” he said. “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.”
If you’re struggling to understand this stuff, allow this worthy column to give you its legal advice. If I understand my learned friend correctly, Mr Jackson is saying that if the boat doesn’t run at all, then no one is being discriminated against. Everyone is treated the same – nobody gets the service. As folk in Edinburgh might put it: “You’ll have had your ferry service.”
Just to confuse you, Mr Jackson adds that CalMac is perfectly entitled to operate a Sunday ferry if it wishes. In other words, he’s saying that they wouldn’t fall foul of the law if they refused to sail altogether; but if they did sail but refused entry to, let’s say a black bisexual woman with a wooden leg, then CalMac’s officials might find themselves in the nick for discriminating.
Now nobody would wish to see CalMac officials behind bars.
Would they?
CalMac's lawyer, Brian Napier QC, advised that the ferry operator could not use religious objections from islanders to excuse a service for the Outer Hebrides that was not as good as other services elsewhere. He said it would have been a breach of the Equality Act. But was the objection made on religious grounds? Not according to the Western Isles Council. It entered the fray, saying its objections were based on protecting the islands' traditions, not on religious faith. Their view was that CalMac had asked its lawyer a loaded question, to get the answer it wanted.
Methinks they have a point.
The Lord's Day Observance Society (LDOS) definitely raises its objections based on religious grounds. The name kinda gives it away. The Reverend Andrew Coghill, a former committee member of the LDOS on Lewis, told BBC Radio Scotland that the company's claims to respect islanders' religious beliefs were “demonstrably untrue".
Methinks Mr Coghill also has a point.
The LDOS has also got stuck into Angus MacNeil, MP, and Alasdair Allan, MSP, accusing them of fudging their responses to a request that they should clarify their position on Sunday sailings.
This reminds me of the time critics accused Robert Runcie, former Archbishop of Canterbury, of “nailing his colours to the fence” on the issue of women's ordination.
Are you still with me?
When these matters are discussed in the public print or on television, the old caricatures are inevitably taken out and dusted down yet again. Wee Free kirk elders are routinely portrayed as narrow-minded flat-earthers who will fight to the last drop of their beadle’s blood to preserve outmoded customs.
The forces of progress are, of course, presented as benign promoters of true 21st-century civilisation. If you believe that, you'll believe anything.
While I think that there are serious theological problems about simply applying the rules for the Jewish Sabbath – which is a Saturday – to the Christian Sunday, I cannot see why people should be ridiculed for seeking to preserve the character of their island life. Nor for believing that a day of rest, either for religious or psychological reasons, is a good thing.
The truth is that Sunday transport will alter the special character of the Western Isles forever. Sunday will gradually become a day like every other day, just as it is in mainland Britain.
People will have to work on Sundays to provide services for the visitors. What will happen is that staff who wish to keep Sunday free will be pressurised into working. It will be made clear to them that unless they are prepared to co-operate, they will lose their jobs. It has happened on mainland Britain, and it will happen in places like Lewis.
Tourism is a double-edged sword, as all island and rural communities know. It is an important part of the local economies. But a fine balance needs to be maintained. People visit isles because of what they have to offer. But if the islands lose their distinctive character, they will lose the very qualities which attract visitors in the first place.
Mind you, too many assumptions are being made about the views of the islanders. Opinion polls are not enough. Surely a full-blown referendum should have been held to establish clearly the wishes of the majority of islanders.
That is this column’s independent legal advice. The Western Isles’ cheque, I'm sure, will be in the post.