Public Law Case Update - December 2018

The December 2018 edition of our case update features six cases each of which highlights an important point of principle or procedure. These include a focus on when differential treatment is objectively justified, whether it is unlawful discrimination for a business to refuse to express through its services a political opinion with which it disagrees, and the rules of statutory interpretation. These further include confirmation that judicial review is a remedy of last resort and that a legitimate expectation created by a public ministerial statement continues until publicly withdrawn.

In this edition, our experts examine the following cases:

Supreme Court protects the freedom not to express an opinion - Lee v Ashers Baking Company Ltd and others; Judicial review as a remedy of last resort - St George's University of London and another v R (on the application of) Rafique-Aldawery and another; When is a policy creating differential treatment objectively justified? - R (on the application of T and others) v Secretary of State for Education; Rules of interpretation (1) - applying ordinary and natural meaning in the law on referendum expenses - R (The Good Law Project) v Electoral Commission and others; Rules of interpretation (2) - applying the ejusdem generis rule to determine the scope of a public body's powers - R (on the application of Muir) v Wandsworth Borough Council and Smart Pre-Schools Limited; Legitimate expectation created by a statement in a government Green Paper - R (on the application of Save Britain's Heritage v Secretary of State for Communities and Local Government. Supreme Court protects the freedom not to express an opinion

Lee v Ashers Baking Company Ltd and others

The question before the Supreme Court was whether it was unlawful discrimination for the McArthurs, the owners of a Belfast bakery, on the basis of their religious beliefs, to refuse to supply Mr Lee with a cake iced with the message 'support gay marriage'. Following that refusal, Mr Lee brought a claim for discrimination, including on the grounds of sexual orientation and political opinion, contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1998 (FETO) respectively.

That claim was successful both at first instance and at the Court of Appeal. The McArthurs appealed to the Supreme Court which considered whether any discrimination had taken place and, if so, how the rights of Mr Lee under the Northern Irish equality laws should be balanced against the McArthurs' rights to freedom of religion and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights (ECHR).

The Supreme Court found that there had been no discrimination on the basis of Mr Lee's sexual orientation. Mr Lee's order was rejected because of the content of the message itself, rather than any attribute of Mr Lee. The McArthurs objected to gay marriage, not to Mr Lee as a gay man. He had been served by the McArthurs previously, and a heterosexual customer requesting the same message would have been treated in the same way.

Unlike the rest of the UK, discrimination on the basis of political opinion is unlawful in Northern Ireland (for obvious historical reasons). The Supreme Court accepted that support for gay marriage was a political opinion. It also accepted that, as with the sexual discrimination claim, the objection was to the message and not Mr Lee.

Where discrimination is on the grounds not of some protected characteristic, but a proxy for or something indissociable from that characteristic, then this will amount to direct discrimination. However, in this case, while there was an argument that there was an indissociable link between the message and Mr Lee's political opinion, no such link existed with his sexuality as one does not need to be gay to support same sex marriage.

The Court therefore went on to consider whether FETO had to be read down so as to be compatible with the McArthurs' rights under the ECHR. It was noted that to compel a person to express an opinion that he or she did not hold would interfere with their rights to freedom of expression and, in this case, religion. Whilst the ECHR clearly does not permit discrimination on the grounds of political opinion, the Supreme Court held...

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