The ‘gay cake’ case before the European Court

Lee v United Kingdom, application No. 188060/19, decision of the European Court (admissibility) 6 January 2022.

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The European Court has recently ruled inadmissible an application brought by Mr. Lee, the unsuccessful claimant in the ‘Gay Cake’ case: Lee v Ashers Baking Co. Ltd [2018] UKSC 49. In that case the Supreme Court ruled that the claimant had not been discriminated against on grounds of his sexual orientation when a bakery refused to sell him a cake with a pro-gay message on it. The Supreme Court ruled that any discrimination was not based on the customer’s sexual preference or association with the gay community, but on their objection to the political message that the words on the cake portrayed. Also, as the difference in treatment was to the political opinion of the customer, the supplier’s Convention rights to freedom of expression were at issue and justified their refusal; meaning that the rights of both the customer and supplier were balanced in a way they were not in the other, typical cases.

The claimant then brought an application under the European Convention, claiming that his Article 8 (private life) and 14 (enjoyment of rights without discrimination) rights had been violated by the ruling, asking the European Court to rule that the law and the Supreme Court had given insufficient protection to his ECHR Rights. However, the European Court has now declared that application inadmissible, stating that the applicant had failed to exhaust all domestic remedies because he had used domestic law (the Equality Act 2010) rather than ECHR rights to argue his rights. Thus the Court refused to interfere with the Supreme Court’s ruling on a matter of domestic law.

The lawyers for Lee are now considering a further appeal to the domestic courts, presumably using ECHR rights as the direct claim; although they (quite rightly) argue that they have already pleaded ECHR rights in the original claim. But, should they launch this appeal and has the European Court got this right?

Under the Convention (Article 35), all applicants must exhaust all domestic remedies before applying to the Court; that is clear and acts as an effective filter, and opportunity for the domestic law to provide a remedy. The question in this case, however, is whether a domestic claimant has to, specifically, raise ECHR rights in the claim. According to the Court in this case, the answer is yes, but surely that is not within the spirit or sense of the Convention and its machinery.

First, in order to comply with the ECHR, member states must provide an effective remedy for breach of Convention rights (Art. 13) and secure the rights in their own jurisdiction. But that does not require them to incorporate the ECHR or name such rights as ECHR rights, provided those rights are in reality protected. The fact that the Equality Act protects Arts 8 and 14 in practice, and allows arguments based on those articles, should thus suffice.

Secondly, Lee’s Art 8 and 14 rights were raised in the domestic proceedings, as were the bakery’s Art 9 (religion) and 10 (free speech) rights. The case was brought under the appropriate domestic proceedings and law (which are imbued with ECHR rights by virtue of the Human Rights Act 1998, and the domestic courts considered those rights when applying the relevant domestic law.

The European Court’s decision also ignores the basic fact that human rights claims are fought not solely by claims under human rights, but within the relevant domestic rules and cases. A person sued for breach of privacy (misuse of private information) makes use of the defence of public interest, which is shaped by Art 10 ECHR; as is the claimant’s private law action (which uses Art 8 in support). So too, in our case, the action has to be brought under the domestic legislation, but at the heart of the claim is the argument that the law breaches ECHR rights.

What the Court should have done was to accept the case, and then decide whether the law, and the Supreme Court, had adequately recognised and protected Lee’s ECHR rights. At that point, using the margin of appreciation, the Court may well have decided that the law achieved the correct balance, but to accept the Court’s ruling as it stands risks great confusion (more so than the Supreme Court’s original ruling) and a reduction in the Court’s power to resolve human rights disputes.