Andrew Tettenborn

Have we reached peak human rights?

Let's hope so

After the Colston debacle, you might be forgiven for having missed the other legal story that broke this week. The European Court of Human Rights has dismissed the complaint in the Ulster ‘gay cake’ case, so the decision in favour of the baker will stand.

In case you need reminding, seven years ago a Belfast gay rights activist called Gareth Lee asked Ashers, a high-class bakery, to produce a cake inscribed with the phrase ‘Support Gay Marriage’ for an event he was organising. The bakery owners refused, citing Presbyterian religious scruples, whereupon Lee sued for discrimination. He lost. Our Supreme Court held that he had not been discriminated against because he was gay (since the order would have been refused even if made by a straight person), and that in any case to make Ashers inscribe a cake with words they disagreed with would infringe their rights to freedom of speech and religion. Lee then complained to Strasbourg, saying that this decision against him had infringed his own rights to private life and freedom of conscience and treated him in an unjustifiably discriminatory way.

Strasbourg is clearly aware of the fact that human rights scepticism is on the rise

The court threw the case out, though not in the way you might expect. True, a layperson might have thought it an obvious non-starter: after all, nobody was threatening Lee’s private life or conscience by refusing to bake him a cake, and if you read the ECHR it contains no right not to be discriminated against. But in human rights terms, the claim was actually very plausible. Strasbourg’s interpretation of the Convention right to a private life amounts to a kind of wide-ranging semi-biblical exegesis incomprehensible to anyone who is not a human rights lawyer, and the court has equally constructed from almost non-existent materials a de facto prohibition against discrimination.

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