Convention rights must be invoked expressly (or in substance) domestically before complaint to ECtHR (Lee v UK)

In order for a complaint to the European Court of Human Rights (ECtHR) about an interference with a person’s rights under the European Convention on Human Rights (ECHR) to be admissible, the complainant must have first invoked those rights expressly (or in substance) in domestic proceedings. In the discrimination case brought by Gareth Lee against Ashers Bakery and its owners, Mr and Mrs McArthur, concerning their refusal to supply him with a cake iced with the slogan ‘Support Gay Marriage’ Mr Lee had not invoked those rights and at no point were the domestic courts required to balance his Convention rights against those of the McArthurs. Therefore, he had not exhausted his domestic remedies and his complaint about the UK Supreme Court’s judgment in those proceedings was inadmissible, according to the ECtHR.

Lee v United Kingdom (Application no. 18860/19)

What are the practical implications of this judgment?

This judgment (which it should be noted concerns a separate complaint against the UK government rather than an appeal against the UK Supreme Court decision) demonstrates the importance of raising any relevant human rights points under the European Convention on Human Rights during the course of domestic proceedings. If that is not done it risks any later complaint to the European Court of Human Rights in Strasbourg being ruled as inadmissible. Parties should therefore ensure that if Convention rights are relevant, and there is a risk that a trip to Strasbourg may later be necessary, those rights should be pleaded expressly, even if the case concerns a domestic right which reflects them.

Although this judgment was by a majority (and there is no indication of how large the majority was or the basis of the minority view), this decision is final. There is no appeal process. It appears that this is therefore likely to be the last word in the saga of the ‘Support Gay Marriage’ cake.

Case details

• Court: European Court of Human Rights
• Judges: Yonko Grozev (President), Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking, and Andrea Tamietti (Section Registrar)
• Date of judgment: 6 January 2022

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