Gay Cake Saga: End of the road

Caragh Bailey
20/01/2022
2
3 min read
Gay Cake Saga, domestic vs European law. By Employment Law Friend

The refusal of a Northern Irish bakery to decorate a cake with the words “Support Gay Marriage”, because of the Christian beliefs of the owners has been rejected for consideration by the European Court of Human Rights, after the Supreme Court had already rejected the claim.

The claim was brought initially under Northern Irish anti-discrimination legislation, arising out of the refusal of Asher’s Bakery in 2014 to decorate the cake in a way which conflicted with the owners Christian beliefs.

At no point did the Claimant, Gareth Lee, rely upon the European Convention, but instead he rested his case solely on domestic law and a claim that he had been discriminated against in the provision of good and services because of his sexuality.

The bakery defended the claim on the basis that they had no knowledge of Mr Lee’s sexuality, and served all customers, but they objected to the wording requested and were entitled to respect under the Convention for their religious belief.

Although Mr Lee succeeded in his claim for direct discrimination on the grounds of sexual orientation and his own religious and political beliefs at first instance, and in the Court of Appeal, this was overturned by the Supreme Court who found there had been no less favourable treatment on the grounds of religious belief or sexual orientation because the bakery owners had not refused to serve Mr Lee because he was gay, but because they objected to being required to promote a message that conflicted with their religious beliefs.

Mr Lee sought to take the matter to the European Court of Human Rights, and relied on various provisions, including Article 9, concerning freedom of thought, Article 10 concerning freedom of expression and Article 14 concerning prohibition of discrimination. He argued that his rights under the Convention had been interfered with by a public authority, the Supreme Court itself, by its decision to dismiss his claims.

The European Court of Human Rights however would not entertain the case, because in order for a complaint to be admissible, the Convention arguments must be before the domestic authorities. Mr Lee had not done this, but had relied simply on domestic anti-discrimination laws, and therefore he could not be said to have exhausted domestic remedies which is a requirement for the ECHR to consider any case. It did not matter that the bakery had relied on Convention Rights, or that the Convention was considered at times by the Supreme Court when they made their decision.

Had Mr Lee brought his claim relying on both domestic discrimination legislation and had argued there had been a breach of his Convention Rights, then the domestic courts could have considered the Convention arguments, and therefore the Strasbourg Court could have done so too. But without consideration by the domestic Courts, the Strasbourg Court could not consider the matter at all. It has been many years since Mr Lee first ordered his cake back in 2014, but there is no right of appeal against this latest decision, and so this long running legal saga of the gay cake is finally at an end.

Interestingly, if the Government goes ahead by restricting the Human Rights Act 1998 (which very largely reflects the Convention) then defeats before the European Court of Human Rights will become more common. If Mr Lee had been prevented from raising Convention arguments before the domestic Courts, as opposed to choosing not to, then Strasbourg would have had jurisdiction to consider the matter.

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