How the Gay Cake Case Reinforces the Human Rights Act
The gay cake case has spent enough time in the courts and headlines over the years to not warrant a detailed retelling but a quick reminder of the facts will be useful here.
Gareth Lee ordered a cake from a bakery which displayed Bert and Ernie from Sesame Street, the words ‘Support Gay Marriage’ and the logo for Queerspace (an LGBTQ organisation in Northern Ireland).
The bakery then later refused to make the cake and refunded Lee, telling him that it would not do so because the bakery was a ‘Christian business’.
Lee brought a case for breach of statutory duty and while he had success in the lower courts, the Supreme Court eventually found against him.
Clearly these proceedings raised a lot of human rights questions on both sides and thus Lee took the question to the European Court of Human Rights where a number of rights were invoked:
Article 8 - right to respect for private life
Article 9 - freedom of thought, conscience and religion
Article 10 - freedom of expression
Article 14 - prohibition of discrimination
Interestingly Lee argued that his rights had been interfered with by the Supreme Court itself by way of its decision to dismiss his claim.
Now the European Court has declared Lee’s application to be inadmissible because while the bakery had raised human rights arguments in the UK courts, Lee had not done so and therefore he had not exhausted all domestic remedies.
Ultimately this case that had attracted so much attention and became talk radio fodder for weeks ended in a damp squib.
However the reason that it did so is because of the power of the Human Rights Act 1998. After all the reason the application was rejected is because the UK courts did not have an opportunity to consider the human rights case. The implication here is that, had they been able to do so, the Human Rights Act is a suitable means of exploring these issues and coming to a final decision in the case. If the Human Rights Act had not existed, it is likely that the European Court of Human Rights would have accepted Lee’s application because there was not a vehicle for considering human rights issues and so domestic remedies had indeed been exhausted.
At a time when the Human Rights Act is consistently under threat from the government, this is a useful reminder that this piece of legislation underpins our commitments under the European Convention on Human Rights and offers a way for rights to be enforced domestically. If it tampered with then those rights will still be enforced but the government will instead have to contend with rulings handed down by Strasbourg.
Something tells me this government doesn’t like being told what to do by Europeans though…
In the podcast this week we talk about a case surrounding the death of esteemed barrister Sir Ian Brownlie QC back in 2010. He died in a car accident in Cairo and his widow has had trouble seeking compensation. Now her case makes its way back to the Supreme Court for a second time.
Episode link: http://uklawweekly.com/2021-uksc-45/
Make a difference today,
Marcus