Lee v Ashers Baking Company Ltd and others

Summary

The Supreme Court unanimously and comprehensively reversed the Northern Ireland Court of Appeal’s decision in the “gay cake” case. The Supreme Court, in a decision of considerable significance for the United Kingdom as a whole, and beyond, held that the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was an arguable case of discrimination on grounds of political opinion, no justification has been shown for overriding the bakery’s ECHR protections against compelled speech.

Facts

Mr. Lee, the Respondent, is a gay man associated with an organisation called QueerSpace, a volunteer organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland. There has been extensive political debate in Northern Ireland regarding the introduction of legislation enabling same-sex marriage, which is a devolved matter; to-date no such legislation has been passed by the Northern Ireland Assembly.

Mr Lee placed an order for a cake with the first Appellant (the Ashers bakery) with the QueerSpace logo and the words "Support Gay Marriage" printed on it. The order was originally accepted by the third Appellant, Mrs McArthur, a director of Ashers.  After discussion with the second Appellant, her husband Mr McArthur, Mrs McArthur telephoned Mr Lee and told him the order could not be fulfilled as the bakery was a "Christian business" and she should not have accepted the order. He was given a refund and was able to secure a similar cake from another bakery in time for the event for which it was intended.

Mr Lee brought a discrimination claim against the Appellants, with the support of the Equality Commission for Northern Ireland, alleging unlawful discrimination on the grounds of sexual orientation, and political opinion, and religious belief. The Appellants were supported by the Christian Institute. These claims of unlawful discrimination succeeded in both the County Court and Northern Ireland Court of Appeal. The County Court held that the Appellants directly discriminated against Mr Lee on the grounds of sexual orientation, political opinion, and religious belief by refusing to make a cake decorated with the words “Support Gay Marriage” because of the Appellants’ religious beliefs. The Court of Appeal refused an appeal against the finding of direct sexual orientation discrimination and allowed the finding of direct religious and political discrimination to stand.

The Attorney General for Northern Ireland intervened in the Court of Appeal, raising various devolution issues, in particular whether the County Court’s interpretation of the relevant anti-discrimination legislation meant that the relevant anti-discrimination legislation was ultra vires, on the grounds that it was contrary to the Appellants’ protected freedom of religious belief and political opinion, and that it amounted to discrimination against the Appellants. These arguments were rejected by the Court of Appeal.

Following delivery of the Court of Appeal's judgment, but before the order of the court was filed, the Attorney General sought to require the Court of Appeal to refer several of the devolution issues he raised unsuccessfully in the Court of Appeal to the Supreme Court. The Court of Appeal ruled, however, that it could not be required to do so because at that date there were no “proceedings” before it. The Attorney General then appealed this refusal to the Supreme Court, and separately referred, under his own authority, the devolution issues for consideration.

Issues

The following were the principal issues before the Supreme Court:

1.  Whether the Appellants directly discriminated against the Respondent, on the grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 ("the 2006 Regulations"), by refusing to make a cake decorated with the words "Support Gay Marriage".

2.  Whether the Appellants directly discriminated against the Respondent, on the grounds of religious and political belief, contrary to the Fair Employment and Treatment (NI) Order 1998 (the "1998 Order"), by refusing to make a cake decorated with the words "Support Gay Marriage".

3.   If the Appellants did unlawfully discriminate on any of these grounds, whether the relevant provisions of the 2006 Regulations or the 1998 Order breached the Appellants’ rights under Articles 9 and/or 10 of the European Convention on Human Rights (“the Convention”), separately or together with Article 14 of the Convention.

4.  If the Appellants did unlawfully discriminate on the ground of sexual orientation, whether in the light of the prohibition of discrimination on the grounds of political opinion or religious belief contained in section 24(1)(c) of the Northern Ireland Act 1998 (‘NI Act 1998’), there was power to make, confirm or approve Regulation 5 of the 2006 Regulations, insofar as Regulation 5 imposes civil liability for the refusal to express a political opinion or to express a view on a matter of public policy contrary to the religious belief of the person refusing to express that view.

5.   If the Appellants did unlawfully discriminate on the ground of sexual orientation, whether in the light of section 24(1)(a) of the NI Act 1998, and Articles 9, 10 and 14 of the Convention, there was power to make Regulation 5 of the 2006 Regulations.

6.  If the Appellants did unlawfully discriminate on the grounds of religious belief or political opinion, whether in the light of the prohibition in section 17 of the Northern Ireland Constitution Act 1973 (‘NICA 1973’), Article 28 of the 1998 Order is void insofar as Article 28 imposes civil liability for the refusal to express a political opinion or to express a view on a matter of public policy contrary to the religious belief of the person refusing to express that view.

7.   Whether the Supreme Court has jurisdiction to entertain the substantive issues by way of an appeal by the Appellants from the Northern Ireland Court of Appeal or by way of a reference made by the Attorney General for Northern Ireland.

8.   Whether the Supreme Court has jurisdiction to entertain the substantive issues by way of a reference made by the Attorney General for Northern Ireland. In particular, whether paragraph 33 of Schedule 10 of the NI Act 1998 permits the Attorney General to require a reference to be made by the Court of Appeal when the requirement for such a reference has been made after judgment has been given on the relevant devolution issue but before the court order has been finalised.

Decision

In a unanimous judgment, the Supreme Court (Lady Hale, Lord Mance, Lord Kerr, Lord Hodge, Lady Black) upheld Ashers’ right to appeal to the Supreme Court, and all of the substantive grounds of its appeal that it considered it necessary to address. The judgment regarding the substantive issues was given by Lady Hale, and on the jurisdictional issues by Lord Mance.

Jurisdiction of the Supreme Court to decide the substantive issues

The Supreme Court had jurisdiction to determine an appeal brought by the bakery and its owners from a Northern Ireland Court of Appeal decision on a case stated from the County Court. The Supreme Court also had jurisdiction to determine the Attorney General’s two references. In particular, and of considerable significance for Scotland and Wales as well, paragraph 33 of Schedule 10 of the NI Act 1998 does permit a reference to be made under that provision by the Court of Appeal in Northern Ireland, even when the requirement for such a reference has been made after judgment has been given on the relevant devolution issue where the court order has not yet been finalised (issues 7 and 8).

Direct discrimination on grounds of sexual orientation

In a decision of considerable significance for discrimination law throughout the United Kingdom, the Supreme Court held that the Appellants did not directly discriminate against the Respondent, on the grounds of sexual orientation, contrary to the 2006 Regulations, by refusing to make a cake decorated with the words "Support Gay Marriage" (issue 1). The Court rejected the approach adopted by the Court of Appeal to “associative discrimination”. Simply because the reason for the less favourable treatment has something to do with the sexual orientation of some people, that did not mean that the less favourable treatment is “on grounds of” sexual orientation. There must, in the view of the Court, be a closer connection than that, a connection that the Court declined to find in this case. In particular, the Court disagreed with the Court of Appeal’s view that “the benefit from the message or slogan on the cake could only accrue to gay or bisexual people”. It could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring.

Direct discrimination on grounds of religious belief and political opinion

As regards the question whether the Appellants had discriminated on grounds of religious belief or political opinion, the Supreme Court considered that the basis for the County Court’s holding that unlawful religious and/or political discrimination had taken place was unclear, and the Court of Appeal had not addressed the issue. The Supreme Court rejected the submission of the Respondent that the less favourable treatment prohibited by the 1998 Order could be on the grounds of the religious belief or political opinion of the person meting out that treatment, and to the extent that the District Judge had held that the bakery had discriminated unlawfully because of its owners’ religious beliefs she was wrong to do so. This too is a significant clarification of the meaning of direct discrimination throughout the United Kingdom.

To the extent that the District Judge held that unlawful political discrimination, arising from the Respondent’s political opinions, the Court considered that it did not amount to unlawful discrimination for the same reasons as unlawful sexual orientation discrimination did not arise. It did consider, however, that it was possible to identify a closer association between the political opinions of Mr Lee and the message that he wished to promote than was the case regarding sexual orientation. The Court accepted that it could be argued that in this case they were “indissociable” for the purpose of direct discrimination on the ground of political opinion (issue 2).

Compelled religious and political speech

Given that Ashers had not discriminated on grounds of sexual orientation, the 2006 Regulations did not, at least in the circumstances of this case, impose civil liability for the refusal to express a political opinion or express a view on a matter of public policy contrary to the religious belief of the person refusing to express that view. There was no need for the Court, as a result, to consider whether it was necessary to read down the 2006 Regulations to take account of the Appellants’ Convention rights or to consider whether there was power to make them (the devolution issues).

However, since the Court held that the County Court may have decided there was unlawful political discrimination, and that this was at least arguable, the Supreme Court went on to consider the question of freedom of religion and freedom of speech. Here too, the decision of the Supreme Court addresses the issue of compelled speech, an area of human rights law that was somewhat uncertain. In both cases, the Court considered that what mattered was that by being required to produce that cake the Appellants were being required to express a message with which they deeply disagreed. The Appellants’ Convention rights under Article 9 and 10 meant that the 1998 Order should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so, and no convincing justification had been identified in this case. It was unnecessary, as a result, to consider the Attorney General’s further substantive devolution points regarding the vires of the 1998 Order under the NICA 1973 (issues 4, 5, and 6).

Christopher McCrudden was Junior Counsel in the case, acting for Ashers in the Northern Ireland Court of Appeal and the Supreme Court.