"Gay cake" case communicated by European Court of Human Rights

The First Section of the European Court of Human Rights has communicated the case of Lee v the United Kingdom.

The case is brought by Mr Gareth Lee who, in 2014, placed an order for a cake from Ashers Baking Company Limited with the words “Support Gay Marriage” on it and later received a telephone call from Ashers indicating that the order could not be fulfilled. The reason given was that Ashers is a Christian business and, on that basis, should not have taken Mr Lee's order.

Mr Lee's claim that he had, inter alia, suffered discrimination on the grounds of sexual orientation - as prohibited by domestic legislation in force in Northern Ireland - was upheld by the County Court, and affirmed by the Court of Appeal. However, the Supreme Court subsequently found in favour of Ashers because "the objection was to the message and not to any particular person or persons".

Complaint to the Court

Mr Lee complains under Articles 8, 9, 10, and under Article 14 in conjunction with those Articles, of the European Convention on Human Rights, that his rights were interfered with by a public authority (namely, the Supreme Court) by its decision to dismiss his claim for breach of statutory duty due to discrimination contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and the Fair Employment and Treatment (Northern Ireland) Order 1998.

Mr Lee argues that the interference was not proportionate and that the Supreme Court disregarded the democratically chosen resolution to the conflict of rights between religious organisations and persons of same sex orientation, and those supporting the aspirations of such persons.

Questions to the Parties

The Court has asked the parties the following questions:

1. Has the applicant exhausted domestic remedies in respect of his complaints under Articles 8, 9, 10 and 14 of the Convention by presenting his complaints in so far as they are different to his complaints under domestic legislation, either explicitly or in substance, in a manner to allow his allegations of violations of Convention rights to be addressed and, where appropriate, to afford redress before those allegation were submitted to the Court (see Peacock v. the United Kingdom (dec.), no. 52335/12, § 33, 5 January 2016 and Nak Naftogaz Ukrainy v. the United Kingdom (dec.) no. 62976/12, § 50, 23 May 2017)?

2. If so, has there been an interference with the applicant’s rights under Articles 8, 9 and 10 of the Convention, both alone and in conjunction with Article 14 of the Convention? Was that interference in accordance with the law and necessary in a democratic society?

3. In this context, what is the appropriate test to be applied by the Court in a case concerning a dispute of a “purely private nature” (see mutatis mutandis Plaand Puncernau v. Andorra, no. 69498/01, § 59, ECHR 2004 VIII, i.e.)?

My previous comments on this case

I entirely agree with Mr Lee's argument that the Supreme Court, through its judgment in Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland), "disregarded the democratically chosen resolution to the conflict of rights between religious organisations and persons of same sex orientation".

I expressed the same view on the day the Supreme Court handed down its judgment here - where I said that I thought the judgment was wrong - and expanded my reasons for that view later here.

In February 2019, I gave a talk at the Leeds LGBT Diversity Group event “Breakthrough moments: LGBT people and the law” (held at Irwin Mitchell LLP, Leeds) on the case, the full text of which is available here