Impact of Lee v United Kingdom Case to ECHR

Posted in : Seamus Says - Employment Law Discussion on 6 September 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Scott: We're going to move on to the gay cake case which was known as Colin McArthur, Karen McArthur & Ashers Baking Company Ltd v Gareth Lee [2018]. The Lee and Ashers has been referred to the European Court of Human Rights.

How is this different to the case, taken to the UK Supreme Court, and how might the decision impact in Northern Ireland when it's delivered?

And it says here, "I assume it could be some time before we see the decision," and we can agree on that.

Seamus: Yes, I think that probably is right. We'll all be familiar with the gay cake case, as it's known. We had an original decision in the county court. There was a decision into the Court of Appeal and then subsequently on to the Supreme Court. Made a very exciting time here when the Supreme Court paid a visit to us here in Northern Ireland.

The case that is being taken to the European Court of Human Rights, there are differences in relation to the case. It's interesting from the poll that people are saying that the case has gone too far. And possibly a lot of that is to do with the massive expense of the case in terms of the costs that have been racked up legally.

Scott: Yes, well, it was a case that was for, £500 or something was awarded in the County Court.

Seamus: Yes. And I was just looking, and I think the total price of the case was something like £38.40 or something like that. And you do think about proportionality and you talk about the use of public funds and things like that. But in essence, a lot of the listeners probably don't need to worry about that aspect in the sense that the case going forward is not a case that will involve the bakers of the cake, the McArthurs...

Scott: McArthurs.

Seamus: ...and the company itself. It won't involve the Equality Commission in Northern Ireland here. This is a case that is being brought against the UK (as the UK signed up to the European Convention on Human Rights), which just for clarification purposes, that even after Brexit, that has no impact. This decision will clarify law here for us in the UK.

But the case has been taken against the UK as a member state. And essentially, the position is that the purpose of the case is that you have Mr. Lee, who's alleging that the decision of the Supreme Court is unfair on the basis that it doesn't protect his rights in relation to discrimination.

So the case as it was taken forward related to the fact that he put an order in for the cake and that it was refused. And there was a big distinction made in the Supreme Court decision about how it wasn't the refusal of the service of baking the cake or making the cake, it was more to do with the message that was on the cake in terms of the icing of the cake and things.

Scott: It wasn't to do with Mr. Lee or his sexuality was the argument of the the Supreme Court. It was actually to do with the fact that there was a message which offended the genuinely held beliefs of the McArthurs.

Seamus: Yep. And I was just looking back there. One of the quotes was that the bakers could not refuse to supply their goods to Mr. Lee because he was a gay man or supported gay marriage. But that was very different from obliging them to bake and supply a cake iced with a message with which they profoundly disagreed.

So, in terms of moving it forward, it's been taken by a law firm in Belfast city centre here on behalf of Mr. Lee. My understanding is that there are a number of steps that take place in relation to that. I understood from everything that I can see, there was an acceptance of the case by the European Court on the 15th of August.

But from my reading of it, there appears to be a number of difficult and tricky steps to get the case right through to the point of whenever there's a decision going to be issued, and even how the court come about making the decision. They can do it on the papers or they can have a hearing. All those things will have to be decided in due course. So I would say it will, it could be a fair amount of time before we receive any decision in relation to it.

Certainly, I did go onto the European Court's website, and it provides some breakdown of the cases that are heard for individual states. And there are surprisingly quite a lot of them in each year that I heard them. You're looking at somewhere along the lines of between 5 and 10 cases each year, where there are decisions given relating to the UK itself. And those range from probably cases that are very important in terms of member state decisions itself and urgency behind them.

Scott: There’s a lot of them on criminality...

Seamus: There is.

Scott: ...and death in custody and stuff like that.

Seamus: Yes.

Scott: So most what's the man to do with a message on a cake?

Seamus: On a cake, yes.

Scott: So I suppose...

Seamus: And that's not in any way reducing the importance of this case or anything like that, but there's a lot of . . .You got a good overview of things that I wouldn't even have dreamed of that they were …….

Scott: They wouldn't normally impact on our listeners or employers to that extent. They tend to be about, I suppose, the forces of the state and such like. And there is an awful lot about the armed forces or police and such like. And this one here, is it because Ashers is a limited company and they don't have human rights and therefore his perspective was denied by a limited company? Because the McArthurs aren't part of this case.

Seamus: They're not part of it and you're right in the sense that Mr. Lee's an individual. The case was taken, that was a limited company that they were taking against that. And the argument is that the limited company, it doesn't have the same legal rights as an individual would have. So, there is an aspect of the case that certainly is focussing on that.

Just in one of the articles from "The Guardian," I think that the legal team said that they were not arguing that the Supreme Court ruling should be overturned because baking the cake didn't apply the bakery supporting expressly that the message of the cake. And they were contending that there was — no reasonable person would equate producing the cake for an individual, private customer with the bakery supporting pro-gay marriage or a message on it to that effect.

So there is an aspect certainly and it's interesting, Mr. Lee talks about that he's also taken this case on behalf of businesses as well and the protection of businesses going forward. So it seems to cover everything that...and moving it in a different direction as to what it was at the Supreme Court. So it's definitely a different type of case. Ultimately, the decision, I think, will take a while before we see anything coming from there, any clarification.

Additional Learning:

Ashers v Lee and its impact in the employment sphere


This article is correct at 06/09/2019

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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