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About Tom Lowenthal

Tom Lowenthal is a Barrister at Blackstone Chambers and DPhil candidate at Balliol College. He is writing his thesis on the challenges which public-private partnerships represent to the realisation of children’s right to education. He was managing editor of the Oxford Human Rights Hub Blog and Co-Chair of Oxford Pro Bono Publico.

Today a chamber of the European Court of Human Rights (“ECtHR”) handed down its decision in Lee v UK, declaring the application inadmissible.

Mr Lee’s story is well-known. In 2014, Ashers Bakery (“Ashers”) agreed to provide Mr Lee with a cake on which would be iced an image of Mr Lee’s choosing. At the time, Mr Lee did not provide details of what he wanted on the cake. In the end, the image Mr Lee chose was a colour picture of the Sesame Street characters Bert and Ernie with the headline caption, “Support Gay Marriage”. Ashers staff then got in touch with Mr Lee, and said that because of their religious beliefs, they would be unable to fulfil the order.

In very brief summary, Mr Lee brought a claim in the County Court in Northern Ireland, alleging discrimination on grounds of sexual orientation (contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006) and religious/political opinion (contrary to the Fair Employment and Treatment (NI) Order 1998). The County Court found in his favour, as did the NI Court of Appeal. The Court of Appeal’s decision is discussed here.

Ashers successfully appealed to the Supreme Court. The Supreme Court found that the act of refusing to bake the cake was not prohibited discrimination on grounds of sexual orientation. The Court did not strictly decide whether the same was true of political discrimination, but held that if that were the case, then the 1998 Order would have to be read down to prevent the compelling of expression. There is much to criticise in this decision: it is discussed on the blog here.

Mr Lee then made an application to the ECtHR, alleging violations of Arts. 8, 9, 10 and 14 ECHR. which has now been declared inadmissible for failure to exhaust domestic remedies. The first three articles had not formed part of the earlier litigation and did not appear to be relevant to the substantive claims raised. However, the ECtHR then held that – even though in substance the domestic claim was one of discrimination – the application of Art. 14 is so fact-sensitive that Mr Lee needed to plead it expressly, otherwise no proper balancing between the competing Convention rights could take place. Mr Lee had not done so, instead relying on the statutory rights, and so his claim was inadmissible.

This is a rather anticlimactic end to Mr Lee’s legal fight.

It is difficult not to feel that a major factor motivating this decision was a desire not to have to engage with the difficult and political substance. There is an interesting analogy with the Masterpiece Cakeshop case (which received all too much acontextual citation in Lee). In that case, the US Supreme Court avoided the question of the balance between the business owner and customer by instead reaching the narrow holding that, in considering the matter, the Colorado Civil Rights Commission did not exhibit the required religious neutrality.

The key practical point to take from Lee is that the requirement that the applicant raise the “substance” of the Convention complaint in domestic courts is to be treated strictly, notwithstanding that it is supposed to be applied with “some degree of flexibility and without excessive formalism” (see Azinas v Cyprus). If Lee is rightly decided (and inadmissibility decisions are final), it now seems that there is a requirement for express pleading of Convention rights. At the least, litigants would be well-advised to assume there is such a requirement, if they suspect that a trip to Strasbourg is possible, even where domestic law has chosen to provide a statutory (or other private law) remedy which maps onto a Convention right.

It therefore seems that where states party to the Convention do give effect to human rights through specialised causes of action dealing with particular situations (against the state or private parties), litigants are expected to invoke the Convention at first instance in order to go on to Strasbourg, notwithstanding the existence of the specialised cause of action. This is potentially inefficient, and an interesting (if explicable, in light of the ECtHR’s international nature) inversion of the doctrines of constitutional avoidance adopted in many jurisdictions, which courts deploy to avoid the direct application of constitutional rights.

 

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