By Henry Martin For Mailonline
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A close family friend of two Christian bakers who were embroiled in a discrimination case after they refused to bake a ‘support gay marriage’ cake has said the couple are ‘relieved and happy’ that the seven-year ‘ordeal’ is over.
Simon Calvert, Deputy Director for Public Affairs at The Christian Institute and friend of bakers Daniel and Amy McArthur, exclusively told the MailOnline: ‘They’re happy at the result, relieved and happy for us to deal with the media on their behalf.
‘The European Court has made clear that this decision on inadmissibility [of the case] is the final ruling, so that’s the end of the road.
‘The family have had this hanging over them for [close to eight] years but throughout that time they have always publicly and privately held very closely to their Christian faith and they’ve taken comfort in that.
‘They’re private people, this hasn’t been easy for them as you can imagine, but they knew that they hadn’t done anything wrong.
‘They knew that they hadn’t done anything unlawful and they were vindicated by the UK Supreme Court and they’ve been vindicated again today by the ruling from Strasbourg.’
The Northern Ireland Equality Commission faces ‘serious questions’ after it spent £251,000 of public money backing a gay activist who brought legal action against Christian bakers, the region’s First Minister said – as he claimed the case ‘should never have been brought to court in the first place’.
The European court is a ‘subsidiary’ to national systems, not an alternative, meaning that national courts should determine human rights cases first.
This means that if an application is brought to the European court in Strasbourg, it should ‘have the benefit of the views of the national courts’, ECHR rules say.
The rule is intended to give national authorities, primarily the courts, the opportunity to ‘prevent or put right the alleged violations of the [Human Rights] Convention’ themselves, the ECHR’s Practical Guide on Admissibility Criteria says.
Today, the ECHR threw out Gareth Lee’s complaint that he was discriminated against over a Christian bakery’s refusal to make him a cake iced with ‘Support Gay Marriage’ because he had not ‘exhausted domestic remedies’.
This is because Mr Lee did not specifically argue in the British courts that his human rights – as set out by the European Convention on Human Rights – were violated.
Bringing a case to a national court is known as a ‘domestic remedy’.
There is an obligation in international law to ‘exhaust domestic remedies’, which means national courts should have an opportunity to settle a case first.
The high-profile controversy began when Gareth Lee, a member of the LGBT advocacy group QueerSpace, ordered a £36.50 cake from the Ashers bakery in Belfast, run by Daniel and Amy McArthur, in May 2014.
The couple refused to fulfil the order because they disagreed with the slogan – ‘Support Gay Marriage’ – which was supposed to be drawn in icing on the dessert item, which also featured Sesame Street puppets Bert and Ernie.
This sparked a seven-year-old legal battle which cost The Equality Commission of Northern Ireland £251,000 of public money backing Mr Lee, while the Christian Institute covered £250,000 of legal costs for Ashers Baking Company, which takes its name from an Old Testament figure.
But in what appears to be a finishing blow for Mr Lee’s case, the European court in Strasbourg threw out his complaint today, ruling that he should have brought up the alleged violation of the human rights convention in British courts – which he failed to do.
Northern Ireland’s First Minister Paul Givan said the case raises ‘serious questions’ for Northern Ireland’s Equality Commission, which backed Gareth Lee in his court actions.
Mr Givan said: ‘I am glad the European Court of Human Rights has ruled this to be inadmissible. It validates the decision of the UK Supreme Court, which was to say that this never should have been brought to court in the first place.’
Phoenix Law, who represented Mr Lee, acted on a pro-bono basis for the European court case, meaning they did not charge him legal fees because of ‘the significance and public interest level’, his lawyer Ciaran Moynagh told MailOnline, adding: ‘And therefore there was no cost to the taxpayer [for the ECHR case].’
He also said that, while Mr Lee may not be able to re-hash his own case in British courts, if a similar incident were to arise he and his legal team would offer their support.
‘Instead of going to a county court on a goods, facilities, services and premises basis, it would be straight to the High Court on a human rights challenge because the legislation needs testing,’ he added.
The ECHR deals with cases free of charge, but claimants will still typically have to bear their own costs such as lawyers’ fees – unless advocates take the case pro-bono – or research expenses.
Daniel McArthur and his wife Amy, the owners of Ashers bakery, pictured in 2018. Simon Calvert, Deputy Director for Public Affairs at The Christian Institute and friend of the McArthurs, exclusively told the MailOnline: ‘They’re happy and relieved at the result. They knew they hadn’t done anything wrong.’
The Belfast bakers refused to make a cake decorated with the words ‘Support Gay Marriage’ (pictured: A cake with a similar design, made by another bakery)
Calvert told the MailOnline: ‘There’s no way Mr Lee’s lawyers can attempt to relitigate events from years ago and I think most people would like to think that the McArthur’s can now just get on with their lives.
‘I want to say that I’ve got no doubts whatsoever that this has also been a difficult ordeal for Mr Lee, I’ve said that before and I’ll say it again.
‘But if I had the opportunity to have a coffee with Mr Lee, I would want to say this isn’t a ruling which in any way endorses discrimination against gay people.
‘The idea that the UK Supreme Court is somehow a bastion of homophobia is ludicrous.
‘No, it’s a ruling which benefits everybody – Christians, gay people, everybody benefits from the protection of freedom of speech.
‘Lots of people who don’t agree with the McArthur family’s Christian faith will still be very happy today that their successful appeal to the UK Supreme Court still stands.
‘I mean, I’m surprised that anybody would’ve wanted to try to overturn a ruling that protects everyone’s free speech, because the Supreme Court ruling protects a gay baker from being forced to print cakes saying that gay marriage is an abomination, just as much as it protects Christian bakers from having to support gay marriage.
‘So the Supreme Court ruling is a ruling which protects everybody’s free speech.
‘It has been an ordeal for everybody involved and I think most people will just be glad that we can finally draw a line under it and that we’ve reached a settlement in the courts that benefits people on all sides of the debate.’
Timeline of the ‘gay cake case’
Lorcan Price, legal counsel faith-based advocacy group ADF International, said the UK Supreme Court had ‘rightly protected the religious rights of service providers’.
His group said in a statement: ‘With the support of the tax-payer funded Equality Commission of Northern Ireland, Gareth Lee, who had ordered the cake, sued the bakery for discrimination, with UK charity, the Christian Institute, supporting the McArthur family. In October 2018 the UK Supreme Court unanimously held that the bakery had acted lawfully.’
They added: ‘The issues in the Ashers Bakery case reflect wider concerns that citizens across Europe face when anti-discrimination laws are misapplied to prevent them living out their faith including through their business and professional lives.’
The commission had supported Mr Lee’s claim in Britain, but said it had ‘no remit to assist Mr Lee to make his application’ to the ECHR on August 15, 2019.
He had referred the case to the ECHR, claiming appropriate weight was not given to him under the European Convention of Human Rights, after the UK Supreme Court ruled in favour of the Christian bakers in 2018.
When the row broke out in 2014, same-sex marriage was not legal in Northern Ireland, but it was officially recognised in January 2020.
The Christian Institute welcomed the ECHR ruling today, saying it was ‘good news for free speech, good news for Christians’.
‘I’m surprised anyone would want to overturn a ruling that protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners,’ spokesman Simon Calvert said.
A spokesman for the Northern Ireland Equality Commission told MailOnline: ‘The Equality Commission provides support and assistance to people who feel they may have been discriminated against contrary to Northern Ireland’s equality laws, including providing assistance to take a legal case to court or tribunal.
‘This is in accordance with our statutory remit, as an independent public body with an important role in ensuring effective application of Northern Ireland’s equality laws.
‘Whilst the Commission did not support Mr Lee in his application to the European Court of Human Rights, we had supported Mr Lee’s discrimination case in the domestic courts in line with our remit.
‘The Belfast County Court and the Northern Ireland Court of Appeal found that Mr Lee had been discriminated against on grounds of sexual orientation, political opinion and religious belief. The Supreme Court overturned these findings in 2018.
Northern Ireland’s First Minister Paul Givan, pictured in December, said the ‘gay cake’ case ‘should never have been brought to court in the first place’
‘In support of Mr Lee’s discrimination case against Ashers Baking Company Ltd in the domestic courts, the Commission’s legal expenditure amounted to £250,603.86 over the four financial years.’
But speaking after the ruling, Mr Lee said he had ‘hoped for a different outcome’ in his challenge to the ECHR, adding that he was ‘most frustrated that the core issues did not get fairly analysed and adjudicated upon because of a technicality’.
Mr Lee’s lawyer, Ciaran Moynagh of Phoenix Law, said they would consider whether to bring a fresh court challenge under domestic law.
Belfast-based human rights group the Committee on the Administration of Justice described the ECHR not being able to deal with the issue ‘on a technicality’ represents a ‘missed opportunity’ to clarify the law, and there is now an ‘ambiguity’ on whether campaigners can be refused services like printing leaflets or setting up websites on the basis of ‘it’s not you, it’s your message’.
And John O’Doherty, director of LGBTQ support group the Rainbow Project, said the ECHR ruling may bring the case to a close, but ‘there remains a number of questions around what protections exist for LGBTQIA+ people when accessing goods, facilities and services following the Supreme Court decision in October 2018.’
Gay rights activist Mr Lee said he had ‘hoped for a different outcome’ in his challenge to the ECHR over the ‘gay cake’ case.
He said: ‘Everyone has freedom of expression and it must equally apply to lesbian, gay, bisexual and trans people.
‘The message on the cake was mine and I paid a company that printed messages on cakes to print my message.
‘My message supported the campaign for same-sex marriage that was ultimately successful and I am delighted with that.
‘I am most frustrated that the core issues did not get fairly analysed and adjudicated upon because of a technicality.
‘None of us should be expected to have to figure out the beliefs of a company’s owners before going into their shop or paying for their services.
‘This case has put a spotlight on the challenges faced by LGBT+ in Northern Ireland.
‘I will continue to support all law that protects and gives rights to all people equally.’
The ECHR ruling said: ‘Convention arguments must be raised explicitly or in substance before the domestic authorities. The applicant had not invoked his Convention rights at any point in the domestic proceedings.
‘By relying solely on domestic law, the applicant had deprived the domestic courts of the opportunity to address any Convention issues raised, instead asking the court to usurp the role of the domestic courts.
‘Because he had failed to exhaust domestic remedies, the application was inadmissible.’
Councillor Andrew Muir was photographed cutting a replacement cake at a gay rights event in 2014
In 2018, the UK Supreme Court ruled that Northern Ireland gay rights activist Gareth Lee was not discriminated against
The cake, which featured Sesame Street puppets Bert and Ernie, was intended for a private function marking the International Day Against Homophobia.
The order was accepted and he paid in full, but two days later the Christian owners of the company called to say it could not proceed due to the message requested.
Mr Lee, a member of the LGBT advocacy group QueerSpace, launched the legal case, supported by Northern Ireland’s Equality Commission, alleging discrimination on the grounds of his sexuality.
The case was fought in several courts, eventually in 2018 reaching the UK Supreme Court, which ruled that Mr Lee was not discriminated against when Ashers bakery refused to make him a cake with the slogan supporting gay marriage.
Mr Lee then referred the case to the ECHR, claiming that the Supreme Court failed to give appropriate weight to him under the European Convention of Human Rights.
But the ECHR in Strasbourg today ruled that the case was ‘inadmissible’, finding that Mr Lee had failed to ‘exhaust domestic remedies’ in the case, and he had not ‘invoked his Convention rights at any point in the domestic proceedings’.
Mr Lee had previously won hearings at the county court and the Northern Ireland Court of Appeal in 2015 and 2016, but the owners of Ashers – backed by the Christian Institute – challenged those rulings at the Supreme Court.
In 2018 five justices unanimously ruled that they had not discriminated against the customer. The Supreme Court’s then president, Lady Hale, said that the bakers did not refuse to fulfil the order because of the customer’s sexual orientation, but because they objected to ‘the message on the cake’.
Mr Lee then referred the case to the ECHR, claiming that the Supreme Court failed to give appropriate weight to him under the European Convention of Human Rights.
He claims that his rights were interfered with by the decision of the UK’s highest court to dismiss his claim for breach of statutory duty to provide services, and the interference was not proportionate.
The high-profile controversy first flared when Mr Lee, a member of the LGBT advocacy group QueerSpace, ordered a £36.50 cake from the Ashers bakery, run by Daniel and Amy McArthur, in May 2014
In a previous hearing, the UK Supreme Court’s then president, Lady Hale, said the McArthur family hold the religious belief that ‘the only form of marriage consistent with the Bible and acceptable to God is between a man and a woman’.
She said: ‘As to Mr Lee’s claim based on sexual discrimination, the bakers did not refuse to fulfil his order because of his sexual orientation.
‘They would have refused to make such a cake for any customer, irrespective of their sexual orientation.
‘Their objection was to the message on the cake, not to the personal characteristics of Mr Lee or of anyone else with whom he was associated.’
Mr Lee said at the time that the refusal to make the cake made him feel like a ‘second-class citizen’.
The McArthurs said they did not turn down this order because of the person who made it, but because of the message requested on the cake.
The Christian Institute welcomed the ECHR ruling, saying it was the ‘right result’.
Spokesman Simon Calvert said: ‘The UK Supreme Court engaged at length with the human rights arguments in this case and upheld the McArthurs’ rights to freedom of expression and religion.
‘It was disappointing to see another attempt to undermine those rights, so it is a relief that the attempt has failed.
‘I’m surprised anyone would want to overturn a ruling that protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners.
‘The ruling in October 2018 by five of the country’s most distinguished and experienced judges was welcomed by lawyers, commentators and free speech experts from across the spectrum.
‘They all knew of the implications for freedom of speech and religion, had the decision gone against Ashers.
Gay rights activist Gareth Lee, center, leaves Laganside court, Northern Ireland, Thursday March 26, 2015
‘This is good news for free speech, good news for Christians, and good news for the McArthurs.’
Belfast-based human rights group the Committee on the Administration of Justice (CAJ) described the ECHR ruling in the ‘gay cake’ case as a ‘missed opportunity’.
Daniel Holder, deputy director of the CAJ, said: ‘The European Court of Human Rights having not been able to deal with this issue on a technicality is a missed opportunity for it to clarify its case law on sexual orientation and discrimination in the private sector, particularly when it is said to relate to the message rather than the customer.
‘We believe this leaves an ambiguity whereby individuals and organisations across Europe actively campaigning on gay rights would be particularly vulnerable to a commercial business refusing to provide services like printing posters, leaflets, setting up websites, etc, through claiming an exemption to non-discrimination laws on the basis of ‘it’s not you, it’s your message’.’
Mr Lee’s lawyer Mr Moynagh 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.
‘Given the position the European court has taken, we will now consider whether a fresh domestic case is progressed.
‘The substantive issues raised by my client in his application to the ECHR remain unaddressed and this is a missed opportunity.
‘Today’s decision means that the law here in NI remains in a state of uncertainty as to how persons’ rights can be protected.
‘Owners of limited companies have long taken advantage of being able to separate themselves financially from their business.
‘We continue to believe they should also keep their political and religious views separate.’
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