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UK Supreme Court: The 'Gay Cake' Case

The 21st century has seen many significant human rights decision in a variety of contexts. A further landmark decision was made by the UK Supreme Court on Wednesday 10th October 2018. This particular judgment has received worldwide attention, particularly in the US (through CNN). This scrutiny and reaction, as one can imagine, has been both positive and negative. A selection of responses can be found here and are explored below. The case name and citation is: Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49, although it is informally known as the 'Gay Cake' case. The many difficulties in this case included that the bakery was acting in the course of business and the balancing of rights under the European Convention of Human Rights (ECHR). The full judgment can be found here.

The facts of the case are simple: a Belfast bakery run by evangelical Christians refused to make a cake displaying the message “support gay marriage”. The customer, Mr Gareth Lee, sued on the basis of discrimination on the grounds of sexual orientation and political beliefs. However, the bakery's position has not changed. They have maintained that its objection was to the message on the cake, not the customer. The Supreme Court has unanimously decided that the bakery was not legally obliged to make that particular product and that this did not constitute discrimination on the basis of sexual orientation. Consequently, the Supreme Court overturned the original decision which saw the bakery paying £500 damages to Mr Lee. It is important to note that same-sex marriage is still illegal in Northern Ireland (although civil partnerships are not), as opposed to the rest of the UK where it was legalised in 2014.

During the trial, David Scoffield QC (representing Ashers bakery) argued that the state was penalising the baking firm, with the courts effectively compelling them to make a cake bearing a message with which they disagree as a matter of religious conscience. The court ruled that the bakery did not refuse to make the order because of Mr Lee's sexual orientation and therefore there was no discrimination on those grounds. It was held that the business relationship between Lee and Ashers did not involve people being refused jobs or services because of their religious faith. It appears that there was a clash under Mr Lee's Article 14 ECHR rights (Prohibition of discrimination) and the bakery owner's Article 10 ECHR rights (Freedom of expression). It is important to note, as Lady Hale picked up on, the right to free speech includes the right “not to express an opinion which one does not hold.” (at para 52 of the judgment) Lady Hale went one step further, indicating that “this court has held that nobody should be forced to have or express a political opinion in which he does not believe.” (citing RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 per Lord Dyson) Importantly, Lady Hale identified two very different scenarios to justify this point and drew a vital distinction. First, the bakers could not refuse to supply their goods to Mr Lee because he was a gay man or supported gay marriage. The second, however, was obliging the bakers to supply a cake iced with a message that they had a strong disagreement with. She stated that the bakers would have refused to bake the cake regardless of whether the customer was gay or not.

The reaction to the decision itself has been mixed. The Supreme Court's finding has been seen as a victory for free speech, but in other cases, has been criticised by gay rights groups and the Equality Commission of Northern Ireland (ECNI). The ECNI, who supported Mr Lee's case, argue that this particular decision negatively impacts on the battle against discrimination and that it would study the implications of the judgment carefully. Contrastingly, Northern Ireland's Attorney General, John Larkin, welcomed the decision.

The future implications of the decision could be significant, particularly in the realms of freedom of expression and the freedom to be free from discrimination. It is likely, as per the point made by BBC legal correspondent Clive Coleman, that the ruling poses other questions. These include whether it would be lawful for bakers or other service providers to refuse to make or provide products/services because the provider's owners disagree with ideas at the heart of a particular religion. Further, these questions could extend to political beliefs such as Pro-Remain/Pro-Leave, the supporting of fox hunting or supporting the vegan movement. The possibilities based on political beliefs are far-stretching. As a result, it is likely that in future there will be similar cases whereby services are refused on the basis of beliefs held by the service providers. Whether political beliefs stand up to the same level of protection as fundamental religious beliefs is unclear.

Further to the substantive issues of human rights highlighted above, there are significant problems with the legal system which are clearly reflected in this case. The figures reported by the BBC coverage of the case are startling. The combined costs of the legal representatives for Mr Lee/Equality Commission and the bakery stands at just shy of £500,000. Further concerns are that the £200,000 funding provided to the Equality Commission has come by way of public funding. This has resulted in calls to revise the funding of the Equality Commission. These legal costs are staggering, particularly when one considers that the cake itself was priced at a mere £36.50. The figures highlight just how expensive the legal system can be. It also paints a concerning picture: many people are unable to obtain such funding, therefore there are significant issues surrounding access to justice. A further practical concern is that the case itself has lasted approximately four and a half years in length, which is likely to have put both parties under a significant amount of stress for an extended period of time. Clearly, this model is not satisfactory. This may perhaps amount to sufficient grounds to review the contemporary legal structure within the UK.

Although the Supreme Court decided unanimously, it is entirely plausible that the case will be taken to the European Court of Human Rights in Strasbourg. This is likely to play on the minds of Mr Lee's legal team. Whether this actually happens, along with the impact that this case has on the substance of various human rights under the ECHR, remains to be seen.

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