The Great Strasbourg Bake Off

In this guest post, Professor Mark Hill QC offers an assessment of this morning’s judgment of the European Court of Human Rights in Gareth Lee v United Kingdom, the so-called ‘Gay Cake Case’

Introduction

Northern Ireland’s so-called ‘Gay Cake Case’ attracted a great deal of media interest as it made its way through the County Court, then the Northern Ireland Court of Appeal. Much of it was ill-informed. When the Supreme Court heard the case, it broke new ground by re-locating to Belfast for legal argument. At issue was whether it was lawful for a bakery to decline to take a customer’s order for a bespoke cake if the proposed icing included a written message (‘support gay marriage’) with which the bakers disagreed.

The facts

Ashers Baking Company Limited is a family-run bakery business owned by the McArthur family which has operated in Belfast since 1992. The family are Christians and believe that the only form of marriage which is consistent with biblical teaching is that between a man and a woman. In May 2014, Mr Lee, a gay man, placed an order at Ashers’ shop for a cake to be iced with the following features:

  • a coloured image of Bert & Ernie, characters from The Muppets
  • the logo of QueerSpace, an LGBT campaigning organisation
  • the slogan: ‘Support Gay Marriage’

At the time it was unlawful for same-sex couples to be married in Northern Ireland. That only changed on 13 January 2020 upon the coming into force of the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019.

Although the order for the cake was initially accepted, the McArthurs later contacted Mr Lee and explained that they could not fulfil it as the slogan conflicted with their Christian beliefs. They apologised and a full refund was given. Mr Lee was able to place an order with an alternative supplier to provide a cake bearing the desired slogan in sufficient time for the function for which it was intended.

The proceedings

With the support of the Equality Commission for Northern Ireland, Mr Lee brought proceedings alleging discrimination on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. The judge at first instance found in Mr Lee’s favour and awarded him damages in the agreed sum of £500: Lee v Ashers Baking Co Ltd [2015] NICty 2.

The McArthurs appealed to the Northern Ireland Court of Appeal, which dismissed the appeal: Lee v Ashers Baking Co Ltd [2016] NICA 39. Ashers Baking and the McArthurs then appealed to the Supreme Court.

Supreme Court

The matter was heard by the Supreme Court in May 2018, with judgment delivered the following October: Lee v Ashers Baking Company Limited [2018] UKSC 49. Perhaps surprisingly, having regard to the controversial issues raised, the decision of the Supreme Court was unanimous, Lord Mance, Lord Kerr, Lord Hodge and Lady Black all agreeing with the judgment of Lady Hale. The appeal was allowed and the decision of the Court of Appeal overturned. The reasoning was somewhat different, with the argument shifting from the refusal to serve a gay customer, to the freedom of expression of the Christian bakers. In short:

  • Lady Hale found that there had been no discrimination by Ashers Baking or the McArthurs on the grounds of sexual orientation [35]. They would have refused to ice the slogan whatever Mr Lee’s actual or perceived sexual identity;
  • Similarly, she also found that there was no evidence before the trial judge to support the alternative contention that Mr Lee had been discriminated against on the grounds of his political beliefs, namely support for a change in Northern Irish law to allow gay marriage. The objection was not that Mr Lee supported gay marriage: it was requiring the McArthurs to promote the message of support [47];
  • The McArthurs enjoyed freedom of expression, protected under Article 10 of the European Convention on Human Rights [52]. That included the right not to hold opinions;
  • The McArthurs should not be obliged to supply a cake iced with a message with which they profoundly disagreed [55];
  • The McArthurs’ right to freedom of expression took effect, notwithstanding that the bakery operated as a corporate enterprise with its separate legal personality [57]

In April 2019, Mr Lee lodged an application with the European Court of Human Rights in Strasbourg.

A Strasbourg primer

It might be helpful to spell out a few preliminary points concerning proceedings in the European Court of Human Rights, as they are frequently misunderstood. The Court is based in Strasbourg and its purpose is to compel compliance by national governments of countries of the Council of Europe with the provisions of the European Convention on Human Rights, to which they are signatories. Or, in the words of Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties”. To that end, Article 34 empowers the Court to receive applications from any person or group of individuals “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. If the Court finds that there has been a violation, it must “afford just satisfaction to the injured party” (Article 41), generally in the form of a modest compensatory payment. The Court’s power is largely symbolic – calling out the violation.

Neither the Court nor the Convention has any connection with the European Union. Strasbourg jurisprudence (ie judgments of the European Court of Human Rights) are not part of European Law, the ultimate arbiter of which is an entirely separate institution (the Court of Justice of the European Union) which is headquartered in Luxembourg.

An application to the European Court of Human Rights is not an appeal from the decision of the domestic court of the country in question. The nature of the proceedings is fundamentally different, as evidenced by the change in the parties. The respondent to applications in the European Court of Human Rights is the government of the country concerned. The burden on Mr Lee, therefore, was to prove a violation by the United Kingdom government of one or more of his Convention rights. Thus the case morphed from one claiming unlawful discrimination on the part of a private individual (the bakery) under formulaic equality legislation which gives effect to an EU Directive, into one alleging a violation of Convention rights by an emanation of the state. Mr Lee relied on alleged violations of Article 8 (public and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression). He also relied on Article 14, which prohibits discrimination in the enjoyment of any Convention right on any ground “such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.  Sexual orientation is not expressly mentioned.

The decision of the European Court of Human Rights

The decision was handed down in Strasbourg at 9.00 am GMT this morning: Gareth Lee v United Kingdom (No. 18860/19). Mr Lee’s application was declared to be inadmissible. This did not come as a complete surprise, as the Court’s preliminary thinking had been heralded in Questions to the Parties issued by the First Section of the Court in March 2020.

The Court restated that to be admissible, the matter complained of must have been raised explicitly or in substance before the national courts. This is known as the doctrine of exhaustion of domestic remedies. In this instance, Mr Lee had not invoked his Convention rights at the first instance hearing or in either of the two subsequent appeals. He relied on domestic discrimination law and did not afford the Northern Irish courts or the Supreme Court the opportunity of addressing and resolving the Convention issues”

  1. “The general principles of the Court’s case-law are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). In particular, the Court has held that the specific Convention complaint presented before it must have been aired, either explicitly or in substance, before the national courts. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see also Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III, and Peacock, cited above, § 33).”

The Court rejected Mr Lee’s contention that he had raised his Convention arguments in substance, as the domestic law provisions relied on were enacted to protect his rights under Articles 8, 9, 10 and 14 of the Convention. Likewise it was unimpressed by the argument that the violations complained of only crystallised with the handing down of the judgment of the Supreme Court. [69]

The Court recognised that Mr Lee’s submissions before the domestic courts were to the effect that in accessing goods and services he had been discriminated against on the grounds of his sexual orientation and/or political opinion. The domestic courts were therefore required to consider whether he was treated differently from other consumers on the basis of his sexual orientation and/or political opinion; and, if they answered this question in the affirmative, to consider whether the difference in treatment was objectively justified, having regard to the McArthurs’ rights under Articles 9 and 10 of the Convention [71]. However, Article 14 is ancillary in nature, and there can be no room for its application unless the facts at issue fall within the ambit of one or more substantive Convention rights [72].

The Court did not consider it self-evident that Mr Lee’s case fell within the ambit of Article 8, 9 or 10 of the Convention. What was principally at issue was not the effect on his private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing his political support for gay marriage. [73]

  1. “[…] By relying solely on domestic law, the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the Court.”

The domestic courts were tasked only with balancing Mr Lee’s very specific rights under the 2006 Regulations and the 1998 Order against the McArthurs’ rights under Articles 9 and 10 of the Convention. At no point were they tasked with balancing his Convention rights against those of the McArthurs.

  1. “[…] As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market […]. This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate.
  2. Given the heightened sensitivity of the balancing exercise in the particular national context, the domestic courts were better placed than this Court to strike the balance between the competing Convention rights of the applicant, on the one hand, and the McArthurs, on the other (see, among many examples, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).
  3. In view of the fact that the Human Rights Act 1998 gives litigants the right to invoke their Convention rights directly before the domestic courts, and obliges those courts, so far as it is possible to do so, to read and interpret both primary and subordinate legislation in a way which is compatible with those rights (see paragraphs 46 and 47 above), the Court does not consider that the applicant has provided a satisfactory explanation for not advancing his Convention rights (see, mutatis mutandis, Peacock, cited above, § 38). In a case such as the present, where the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts, even if the alleged breach was contingent on the outcome of their assessment. Throughout the domestic proceedings the McArthurs’ position was that the courts should read down the provisions of the 2006 Regulations and the 1998 Order in a manner which was compatible with their Convention rights or, if that was not possible, to disapply the relevant provisions of the 2006 Regulations and the 1998 Order (see paragraph 15 above). It would have been open to the applicant – and in the Court’s view, it was incumbent on him – to contend that “reading down” or “disapplying” the relevant provisions of the 2006 Regulations and the 1998 Order would violate his own rights under Articles 8, 9, 10 or 14 of the Convention. In choosing not to rely of his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he now relies. Instead, he now invites the Court to usurp the role of the domestic courts by addressing these issues itself.”

The clear learning outcome from this case is that if there are human rights arguments, they should be taken openly and expressly before the domestic courts.  Keeping one’s powder dry for an outing to Strasbourg is not an option.

Some reflections on the Supreme Court’s judgment

This decision illustrates the growing significance of two distinctive pan-national lines of jurisprudence where religious liberty is under consideration, namely the European Court of Human Rights and the Court of Justice of the European Union. I first identified this phenomenon in a paper I delivered at the International Consortium for Law and Religion Studies in Richmond, Virginia in 2013 entitled ‘Freedom of Religion: Strasbourg and Luxembourg Compared’, subsequently published in W Cole Durham and D Thayer, Religion and Equality: Law in Conflict (Routledge, 2016) 25-34. More recently the issue has been taken up by other commentators such as Professor John Witte and Professor Andrea Pin: ‘Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation’ in Pan-National Courts (2021) Emory Law Journal Vol 70(3) 587-661. Tensions are likely to be intensified depending on which of these strains of jurisprudence gains primacy. Mr Lee might have been better advised to pursue his complaint in Luxembourg, an avenue no longer open him as a consequence of Brexit.

Commentators have sought to make parallels with the decision of the United States Supreme Court in Masterpiece Cakeshop Limited v Colorado Human Rights Commission in 2017. Caution must be exercised, first because the legal framework concerning religious liberty is very different in the USA. But more particularly because the facts of the case are different. There was no written slogan: instead, the focus was on the baker’s artistry in creating the cake, and the use to which it might subsequently be put.

The expansive interpretation by Lady Hale appears to extend the enjoyment of human rights to corporate entities such as Ashers Baking Company Limited. This is perhaps understandable when a company acts as little more than a convenient trading vehicle for a small family business. But it will be interesting to see how UK case law develops to expand or restrict the cloaking of corporate entities with human rights.

Finally, it will be recalled that Mr Lee was supported in the domestic courts by the Equality Commission of Northern Ireland. Lady Hale noted a concern voiced in the Court of Appeal that such support may have created the impression that the Commission was not interested in assisting members of faith communities. She emphasised the need for a body such as the Commission to offer its services to all those who may need them because of a protected characteristic and not to give the impression of favouring one such characteristic (sexual orientation) over others (such as religion) [14]. This echoed a remark she had made in the 2013 Supreme Court judgment in Bull v Hall, concerning a same-sex couple seeking a room at a Christian-run bed and breakfast establishment. She suggested that a more neutral approach of the Equality and Human Rights Commission (the equivalent body for England and Wales) might be appropriate when the competing parties in litigation each rely on different protected characteristics [4]. How these Commissions, which have statutory powers to promote equality and combat discrimination, navigate the tricky territory of competing rights will be something else to investigate in coming years.

Professor Hill practises from Francis Taylor Buildings in London and specialises in litigation concerning religious liberty. He is co-author of Law and Religion in the United Kingdom (Third edition, Wolters Kluwer, 2021) 

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