Lee v Ashers Baking Company Ltd and others

The Supreme Court held that the bakery’s refusal to supply a cake iced with the message "Support Gay Marriage" was not unlawful direct discrimination on grounds of sexual orientation because the objection was to the message to be conveyed, not to the customer or to persons associated with him. The court explained that direct discrimination requires less favourable treatment of a person because of a protected characteristic and that associative discrimination was not established on the facts.

The court also held that the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) could not properly be read to impose civil liability for compelling a person or business to express a political opinion or message contrary to their sincere religious belief. Articles 9 and 10 ECHR (freedom of religion and freedom of expression) protect the right not to be compelled to express views one does not hold, and FETO, read in light of those rights and conventional principles, should not be given a meaning that would impose such compelled speech in the circumstances of this case.

Procedurally, the Court found that the Northern Ireland Court of Appeal erred in refusing an Attorney General reference under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998; that procedural error meant the Court of Appeal’s decision could be appealed to the Supreme Court. The Supreme Court allowed the appeal.

Background and parties:

• Ashers Baking Company Ltd, run by Mr and Mrs McArthur (devout Christians), accepted an order from Mr Lee for a cake iced with imagery and the slogan "Support Gay Marriage". The McArthurs declined to fulfil the order because the message conflicted with their religious beliefs. Mr Lee is a gay man active with QueerSpace.

Nature of the claim and relief sought:

• Mr Lee, supported by the Equality Commission for Northern Ireland, brought claims of direct and indirect discrimination under (i) the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the SORs) on grounds of sexual orientation and (ii) the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) on grounds of religious belief or political opinion; a district judge found direct discrimination on all three grounds and awarded damages of £500.

Procedural posture:

• The bakery and its owners appealed by case stated to the Northern Ireland Court of Appeal which dismissed the appeal. The Attorney General for Northern Ireland intervened and sought to challenge the validity of the SORs and FETO by reference to the Supreme Court under Schedule 10 to the Northern Ireland Act 1998; the Court of Appeal declined to make a required reference under paragraph 33, leading to a procedural issue reviewed by the Supreme Court.

Issues framed by the Supreme Court:

1. Whether the refusal to supply the cake amounted to unlawful direct discrimination on grounds of sexual orientation under the SORs.
2. Whether the refusal amounted to unlawful discrimination on grounds of political opinion or religious belief under FETO.
3. Whether, if discrimination otherwise existed, FETO or the SORs should be read down or were invalid to the extent that they imposed civil liability for refusing to express a political opinion contrary to the service-provider’s religious belief, and how Articles 9 and 10 ECHR bore on that question.
4. Whether the Court of Appeal erred in refusing to make a reference under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998.

Court’s reasoning (concise):

• On sexual orientation: the courts below had found associative direct discrimination, but the Supreme Court concluded the proper characterisation was that the bakery objected to the message, not to the customer or to persons associated with him; support for same-sex marriage is not indissociable from sexual orientation and the bakery would have refused to produce that message for any customer.
• On political belief/religion: FETO prohibits less favourable treatment on grounds of the recipient’s religious belief or political opinion. It does not properly extend to liability based on the discriminator’s own religious belief. If there were a claim on the claimant’s political opinion, compelled expression of a message contrary to the owners’ conscientiously held religious beliefs would engage Articles 9 and 10 and could not be imposed absent justification; section 3(1) HRA requires reading legislation compatibly, but not so as to compel speech where no adequate justification exists.
• On remedies and company liability: recognising the owners’ Convention rights meant not treating the separate company form as a vehicle to negate those rights in the circumstances.
• On jurisdiction: the Court of Appeal should have acceded to the Attorney General’s reference under paragraph 33; its failure to do so was procedural error which permitted the Supreme Court to hear the appeal.

Outcome: the Supreme Court allowed the appeal, concluding there was no unlawful discrimination on grounds of sexual orientation and that compelled speech which would force the owners to express a view contrary to their beliefs could not be sustained under FETO in the circumstances.

Appeal allowed. The refusal to supply the cake with the inscription was not direct discrimination on grounds of sexual orientation because the objection was to the message, not to the customer or to persons associated with him; associative discrimination was not established. As to FETO, the less favourable treatment prohibited must be on the grounds of the claimant’s religious belief or political opinion, not on the discriminator’s own beliefs; moreover, compelling a provider to express a political opinion contrary to its owners’ sincere religious belief would engage and likely violate Articles 9 and 10 ECHR and FETO should not be given a meaning that imposes such compelled speech in the circumstances. The Court of Appeal also erred procedurally in refusing the Attorney General’s reference under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998, so the appeal was competent and is allowed.

County Court (Presiding District Judge) found direct discrimination and awarded £500: [2015] NICty 2. Appeal by way of case stated to Northern Ireland Court of Appeal, which dismissed the appeal: [2016] NICA 39. Court of Appeal separately addressed permission and procedure: [2016] NICA 55. Attorney General for Northern Ireland made references under Schedule 10 to the Northern Ireland Act 1998; matter determined by the Supreme Court: [2018] UKSC 49.