In 2014, Ashers Baking, which was owned and run by the McArthur family, agreed to provide Mr Lee with a cake on which would be iced an image of his choosing. At the time, Mr Lee did not provide details of what he wanted on the cake, and when the McArthurs discovered that he wanted a colour picture of the Sesame Street characters Bert and Ernie with the caption ‘Support Gay Marriage’, they told him that because of their religious beliefs, they would be unable to fulfil the order. He sued successfully in the County Court, 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 Northern Ireland Court of Appeal upheld his claim, but that judgment was reversed by the Supreme Court.
Before the ECtHR, Mr Lee argued that the refusal to provide him with the cake he had ordered had been in breach of Articles 8, 9 and 10, both alone and in conjunction with Article 14 of the Convention; that his rights had been interfered with by a public authority (namely, the Supreme Court) by its decision to dismiss his claim for breach of statutory duty; and that the interference had not been proportionate. The Government argued that Mr Lee had not exhausted domestic remedies because he had failed to raise his complaints under Articles 8, 9, 10 and 14 in the domestic proceedings: he could not point to one direct reference to his Convention rights in his submissions to the domestic courts. In addition, it was not sufficient for Mr Lee to have raised his Convention complaints ‘in substance’; his Convention rights had to be positively asserted before the domestic courts. Finally, even if he thought he could win his claim without reference to his Convention rights, that was beside the point: his failure to make that reference had deprived the national courts of the opportunity to consider and rule on those rights. Mr Lee argued that it had been correct and proper for him to have formulated his initial claim by reference to the 2006 Regulations and the 1998 Order, the relevant provisions of which had been enacted to protect his rights under Articles 8, 9, 10 and 14. He therefore relied on his Convention rights in substance and making further, explicit reference to them would have added nothing to his case. The fact that they were pleaded in substance was fully recognised by the domestic courts; the County Court in particular had stated expressly that it was faced with competing rights under the Convention. Furthermore, the violations of which he complained had only crystallised when the Supreme Court had handed down its judgment, at which point there were no further remedies available for him to exhaust.
In the view of the Court:
Throughout the domestic proceedings the McArthurs’ position was that the courts should read down the provisions of the 2006 Regulations and the 1998 Order in a manner which was compatible with their Convention rights or, if that was not possible, to disapply the relevant provisions of the 2006 Regulations and the 1998 Order … It would have been open to the applicant – and in the Court's view, it was incumbent on him – to contend that ‘reading down’ or ‘disapplying’ the relevant provisions of the 2006 Regulations and the 1998 Order would violate his own rights under Articles 8, 9, 10 or 14 of the Convention. In choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he now relies. Instead, he now invites the Court to usurp the role of the domestic courts by addressing these issues itself.
By a majority, the court declared the application inadmissible. There was no dissenting Opinion. [Frank Cranmer]
