Belfast Telegraph

Paul McDonnell: Ashers verdict provides fertile ground for those on both sides of an argument

By Paul McDonnell

The Ashers bakery case may have been seen locally as a debate in relation to the conflict between those who support gay marriage and those who don't, but it is likely to have much wider implications in light of the Supreme Court ruling yesterday.

Gareth Lee brought a claim against the McArthurs and Ashers for direct and indirect discrimination on grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 ('the SORs') and/or on grounds of religious belief or political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 ('FETO').

His claim was supported by the Equality Commission for Northern Ireland. The district judge in the County Court in Northern Ireland held that refusing to complete his order was direct discrimination on all three grounds. The appellants appealed by way of case stated to the Court of Appeal, arguing that FETO and the SORs were incompatible with the McArthurs' rights under the European Convention on Human Rights (ECHR).

On October 24, 2016, the Court of Appeal dismissed the appeal, holding that Mr Lee had suffered direct discrimination on grounds of sexual orientation and that it was not necessary to interpret the SORs to take account of the McArthurs' ECHR rights.

The Supreme Court, however, took a different view. Delivering judgment on behalf of the Supreme Court, Lady Hale, its president, stated that the McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from obliging them to supply a cake iced with a message with which they profoundly disagreed.

She said: "This conclusion is not in any way to diminish the need to protect gay people and people who support gay marriage from discrimination. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation, religion or belief.

"But that is not what happened in this case."

She went on: "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."

Undoubtedly, this case again brought to the fore issues relating to freedom of expression. It is likely to be used as judicial precedent for not only those on both sides of the gay marriage debate, but indeed for any organisation choosing to refuse to provide a particular service on the basis that it is not discriminating against anyone because of their sexual or political orientation, etc, but because providing particular aspects of that service is profoundly inconsistent with the service provider's beliefs.

The Supreme Court was careful to distinguish this from discriminating against someone purely on the grounds of their sexual orientation or political belief, but the outworking of the decision is likely to provide fertile ground for those on each side of any argument.

From the perspective of a lawyer, the case the Supreme Court ruling is engrossing. There has been much debate about the costs incurred on both sides in this litigation, and they are no doubt very substantial, albeit that the Equality Commission on one side and Christian alliance groups on the other may have eased the financial burden on the parties. However, the Supreme Court plays a vital role in the development of the law by dealing only with cases that include an element of wider public interest. As a result, the costs of dealing with civil cases in the Supreme Court are shared across users of the Supreme Court and all litigants bringing civil cases in England, Wales and Northern Ireland.

It remains to be seen if the Equality Commission, who supported Mr Lee, will seek any further ruling on this case by way of possible referral to the European Court of Human Rights in Strasbourg.

The parties, as in this case, are required to explore all possible appeal processes in the UK courts in order to preserve the possibility of any future appeal to the European Court of Human Rights in Strasbourg. The matter is undoubtedly complicated by the fact that the UK, being a party to the European Convention on Human Rights, appears to have become entwined with the issues surrounding Brexit.

Interesting times indeed.

Paul McDonnell is a Belfast-based lawyer and editorial legal counsel for Independent News and Media (NI)

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