Not a piece of cake

And anyone with an answer to human rights is probably wrong

In my column for the Law Society Gazette, which will now appear on a Friday rather than the following Monday, I assess Dominic Raab’s plans to reduce the enforceability of the human rights convention in the courts of the United Kingdom. I argue that if the justice secretary had really wanted to strengthen the credibility of human rights — as he asserted — he would have endorsed, rather than ignored, the prime recommendation made by Sir Peter Gross and his panel of experts in their independent Human Rights Act review.

You can read my column on page 11 of the virtual magazine. Select the single-page view and use “page fit”. Or zoom in with the slider.

European Court, Strasbourg, by Paata Vardanashvili

My conclusions were, I believe, buttressed by a ruling yesterday from the European Court of Human Rights in the gay cake case. Those unfamiliar with the background may wish to start with a preview I wrote for my paying subscribers:

Strasbourg slices le gâteau gay

This strikes me as the key paragraph of yesterday’s ruling:

In view of the fact that the Human Rights Act 1998 gives litigants the right to invoke their convention rights directly before the domestic courts, and obliges those courts, so far as it is possible to do so, to read and interpret both primary and subordinate legislation in a way which is compatible with those rights, the court does not consider that the applicant has provided a satisfactory explanation for not advancing his convention rights.

What the human rights court means is that Gareth Lee, the man who tried unsuccessfully to order a cake from Ashers Baking Company with a slogan campaigning for gay marriage in Northern Ireland, had no excuse for failing to ask the courts there — and, ultimately, the UK Supreme Court — to rule on his human rights claims. Judges in Belfast and London should have been given a chance to consider whether Lee had been denied his rights under article 8 (respect for private life); article 9 (freedom of thought); article 10 (freedom to receive and impart ideas); and article 14 (freedom to enjoy these rights without discrimination).

Article 35 of the human rights convention says the Strasbourg court “may only deal with [individual applications] after all domestic remedies have been exhausted”. Not doing so meant that Lee’s case was ruled inadmissible yesterday.

The Human Rights Act 1998 has been highly successful in its objective of reducing the number of defeats for the UK government in Strasbourg.

As the court implicitly accepts in the passage I have quoted, it’s only because the legislation allows UK courts to “read down” — effectively, to re-write — other statutes that Lee stood a chance of winning on human rights grounds in the Supreme Court. If the 1998 act had not become law in its current form, Lee would have had less chance of defeating the human rights arguments put by the McArthur family, who own the bakery — though, to be fair, they would not have been in such a strong position either.

Neither side could have relied on human rights arguments in the UK courts if the legislation had not been passed. If there was nothing that those courts could have done, Lee’s application to Strasbourg would not have been declared inadmissible and he might have won his case against the government.

Another consequence of the Human Rights Act is the current degree of deference too the UK among the Strasbourg judges. That can be seen in this passage from yesterday’s judgment (references omitted):

The Supreme Court found on the facts of the case that the applicant [Lee] was not treated differently on account of his real or perceived sexual orientation, but rather that the refusal to supply the cake was because of the defendants’ religious objection to gay marriage.

What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing the applicant’s political support for gay marriage.

That is not to say that the facts of the case could not fall within the ambit of articles 8, 9 and 10 of the convention. However, the preliminary question of whether article 14 of the convention is applicable to the facts of the present case is a fundamental one. It is highly fact-sensitive and to date no similar issue has been addressed by the court. By relying solely on domestic law, the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the court.

Consequently, the domestic courts were tasked only with balancing the applicant’s very specific rights under the 2006 regulations and the 1998 order against the McArthurs’ rights under articles 9 and 10 of the convention. At no point were they tasked with balancing his convention rights against those of the McArthurs.

It is clear from the impassioned third-party interventions in this case that this balancing exercise is a matter of great import and sensitivity to both LGBTIQ communities and to faith communities. As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate.

Given the heightened sensitivity of the balancing exercise in the particular national context, the domestic courts were better placed than this court to strike the balance between the competing convention rights of the applicant, on the one hand, and the McArthurs, on the other.

This was clearly a difficult case: it doesn’t normally take the Strasbourg court the best part of three years to declare an application inadmissible. And it was a majority decision, although we are not told who dissented or on what grounds.

There may also be more to it than meets the eye. Lee was represented throughout by Robin Allen QC, a leading specialist in employment, equality, discrimination and human rights law. “The suggestion that we did not argue about balancing the human rights of Gareth Lee against those of the McArthurs is a complete travesty,” Allen told me yesterday. “The decision itself acknowledges that we did — before saying that we did not.”

He was referring to paragraph 11 of the judgment, which reports his argument that the county court would have to decide whether the relevant legislation should be read down under article 10.

Allen fears the human rights court may have been influenced by the government’s proposal that courts in the UK should no longer have to take decisions of the Strasbourg judges into account.

But he took some consolation from the fact that the case had played a part in legalising same-sex marriage in both Northern Ireland and the Irish Republic.

I suspect that the Strasbourg judges are taking a close interest in Raab’s planned reforms. As I disclosed last August, they warned the government that reforming the Human Rights Act could lead to more defeats for the UK. A ruling against the UK yesterday would not have gone down well in London. Favouring religious freedoms over gay rights would have been almost as controversial as the opposite conclusion.

It’s not easy to strike a balance between them and I don’t blame the court for ducking the issue. Resolving these competing rights is certainly not a piece of cake.