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Ashers “gay cake” case: European Court of Human Rights declares application inadmissible

Many readers will be familiar with the so-called “gay cake” case, which centres around the refusal of a Belfast-based, Christian-run bakery to make a cake iced with the slogan “Support Gay Marriage” on the grounds that such a phrase contravened their religious beliefs.

Gareth Lee, a gay man and LGBTQ+ activist, claimed against Ashers Bakery in 2015, saying their refusal to fulfil his order was an act of discrimination on the grounds of both sexual orientation and political opinion. His arguments were initially successful but the Supreme Court rejected them for the following reasons: firstly, that the bakery’s refusal to provide the cake was because of the proposed message, rather than Mr Lee’s actual or perceived sexual orientation; and secondly, that the law in Northern Ireland should not be interpreted as requiring the bakery owners to supply a cake iced with a message with which they profoundly disagreed.

Mr Lee went to the European Court of Human Rights (“ECtHR”), claiming this interfered with his human rights and that this interference was not proportionate. He alleged there had been breaches of Article 8 (right to respect for private life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression), all in conjunction with Article 14 (prohibition of discrimination).

The ECtHR today (6 January 2022), has declared Mr Lee’s application inadmissible because of a failure on his part to exhaust all domestic remedies. As he had not invoked his Convention rights at any point in the domestic proceedings, he “had deprived the domestic courts of the opportunity to address any Convention issues raised, instead asking the [European] Court [of Human Rights] to usurp the role of the domestic courts”.

This case serves as a useful reminder that where rights protected by the European Convention on Human Rights are at issue, the party seeking to rely on these rights should take care to make relevant arguments explicitly and at a preliminary stage in the litigation. Otherwise, a potentially very useful door, namely application to the ECtHR, may be closed off.