In 2014, Gareth Lee, a gay man, asked Ashers Baking Co to decorate a cake with the words ‘Support Gay Marriage’. Ashers refused on the basis gay marriage was against their Christian beliefs.
Lee brought a claim for discrimination under secondary legislation prohibiting direct or indirect discrimination on grounds of sexual orientation, political opinion or religious belief, winning at a Belfast county court and the Court of Appeal but losing at the Supreme Court. However, the ECtHR last week ruled his claim inadmissible on the grounds he had not exhausted his domestic remedies, in Gareth Lee v UK (application no 18860/19).
The judges stated, ‘Even if the applicant is correct in saying that the relevant provisions of the 2006 Regulations and the 1998 Order were enacted to protect the Convention rights of consumers, those provisions protect consumers only in a very limited way; that is, against discrimination in access to goods and services. They cannot, therefore, be said to protect consumers’ substantive rights under Arts 8, 9 or 10 of the Convention.’
They said ‘it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts, even if the alleged breach was contingent on the outcome of their assessment’.
Expressing disappointment at a ‘missed opportunity’, Lee’s solicitor, Ciaran Moynagh, of Phoenix Law, said: ‘Mr Lee brought the appropriate and only application available to him and dealt with all arguments that arose in the course of appeals.
‘We are clear that Mr Lee’s Convention rights were engaged and put forward during the litigation. We will now consider whether a fresh domestic case is progressed.’
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