Promoting Justice /
Protecting Rights

CAJ has described the ruling (1) published today by the European Court of Human Rights on the Ashers cake case (Lee v. the United Kingdom) as a “missed opportunity”. The ruling declared the case inadmissible on a legal technicality.

CAJ, alongside international LBGT and other rights groups (2), was party to third-party intervention in this case led by Professor Robert Wintemute, School of Law, King’s College London. The intervention argued that the earlier UK Supreme Court (UKSC) had “set a dangerous precedent, by creating a ‘disguised religious exemption’, when the discrimination can be characterised as aimed at the customer’s message rather than at the customer.”  The intervention raised concerns that the reasoning would allow distinctions to be made even when messages related to a ‘protected characteristic’ in discrimination law. The intervention stated:

  1. The UKSC’s narrow reasoning would allow a bakery business to refuse to put the message “Black Lives Matter” on a cake, even though it would be willing to put the message “White Lives Matter”. “Congratulations on your baby girl!” could be refused, even though “Congratulations on your baby boy!” would be accepted. “Happy Diwali/Eid/Hanukkah!” could be refused, even though “Happy Easter!” would be accepted. “Good luck at the Paralympics!” could be refused, even though “Good luck at the Olympics!” would be accepted. Similarly, a restaurant could refuse to serve a customer wearing a “Black Lives Matter” T-shirt, even though a customer wearing a “White Lives Matter” T-shirt would be seated.

Daniel Holder, Deputy Director of CAJ said: “The European Court of Human Rights having not been able to deal with this issue on a technicality is a missed opportunity for it to clarify its case law on sexual orientation and discrimination in the private sector, particularly when it is said to relate to the message rather than the customer.

“We believe this leaves an ambiguity whereby individuals and organisations across Europe actively campaigning on gay rights would be particularly vulnerable to a commercial business refusing to provide services like printing posters, leaflets, setting up websites, etc, through claiming an exemption to non-discrimination laws on the basis of ‘it’s not you it’s your message’.”

Background to the case:
The European Court of Human Rights’ ruling today (1) relates to a long-running legal saga . The case, Lee v. the United Kingdom (no. 18860/19), centred on the refusal, in 2014, of a Christian-run bakery in Northern Ireland – Ashers Baking Company – to fulfil an order made by Mr Gareth Lee for a cake with the words “Support Gay Marriage” and the QueerSpace logo on it, as well as the subsequent court proceedings that followed this incident. Mr Lee with the support of the Equality Commission for Northern Ireland (ECNI) took an (initially) successful discrimination lawsuit against Ashers. However, following appeals, in 2018 the UK Supreme Court overturned the previous rulings in favour of Lee and made a judgement in favour of Ashers.

Mr Lee subsequently appealed this ruling in the European Court of Human Rights. Relying on a number of rights found within the European Convention on Human Rights, Mr Lee argued that his rights were interfered with by a public authority – the Supreme Court – by its decision to dismiss his claim for breach of statutory duty to provide services, and that the interference was not proportionate. The rights cited were Article 8 (right to respect for private life), Article 9 (freedom of thought conscience and religion), and Article 10 (freedom of expression), both alone and in conjunction with Article 14 (prohibition of discrimination)

Please direct media enquiries to Robyn Scott, Communications & Equality Coalition Coordinator, on robyn@caj.org.uk or 075 1994 1203.

Footnotes

  1. The ruling of the European Court of Human Rights is available here: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-214966%22]}. The Court is nothing to do with the EU, it is a separate institution and part of the Council of Europe.
  2. The other groups involved in the intervention were: FIDH (Fédération Internationale pour les Droits Humains); AIRE Centre (Advice on Individual Rights in Europe); ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association); NELFA (Network of European LGBTIQ* Families Associations); and ECSOL (European Commission on Sexual Orientation Law).
  3. The Third Party Intervention is available in full here: https://caj.org.uk/wp-content/uploads/2022/01/Written-Comments-2020-10-26-FINAL.pdf

Notes to editors

  • The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. See www.echr.coe.int/Pages/home.aspx?p=home.

 

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