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  • January 2022: The last of the cake? The ECtHR decision in Lee v. The United Kingdom

October’s post ‘Digesting the ‘Support Gay Marriage’ cake case: three years on’ was written in anticipation of a ruling in the communicated case of Lee v. The United Kingdom. On 6 January 2022, the ECtHR handed down its decision in this case, in which it declared Mr Lee’s application inadmissible.

The ECtHR’s Decision
The ECtHR reiterated that for a complaint to be deemed admissible, the arguments based on the European Convention on Human Rights (ECHR) ‘must have been aired, explicitly or in substance before the national courts’ [68]. In the case of Lee v. The United Kingdom, the ECtHR observed that the applicant (Mr Lee) had not expressly invoked his ECHR rights during the domestic proceedings.

Before the national courts, Mr Lee had brought an action for breach of statutory duty, claiming that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or The Fair Treatment (Northern Ireland) Order 1998. The ECtHR considered that Mr Lee’s decision to rely on domestic law (rather than ECHR rights), meant that he did not give the domestic courts the opportunity to address any ECHR issues raised. And, by asking the ECtHR to address his complaints under the ECHR, he invited the ECtHR to ‘usurp the role of the domestic courts’ [77].

Consequently, the ECtHR considered that Mr Lee had failed to exhaust domestic remedies in respect of his complaints under ECHR Articles 8, 9 and 10, read alone and together with Article 14. As such, his complaints were rejected as inadmissible pursuant to ECHR Article 35(1) and (4).

The ECtHR’s decision is final and cannot be challenged. However, Irish Legal News reports that the case could return to domestic courts.

For a more detailed discussion of the ECtHR’s decision, see M Hill’s ‘The Great Strasbourg Bake Off’.

D 21 January 2022    ACaroline K Roberts

CNRS Unistra Dres Gsrl

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