Have we reached peak human rights?

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.

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. The court, however, ducked all these issues. Instead, it fell back on legal technicality. Lee, it said, fell at the first fence because he had not adequately aired his human rights complaints in the UK courts.

Even though Lee lost in essence by default, the decision is good news and not only in terms of the protection of conscientious religious views. It is also important because the last thing we want is responsibility for swaths of discrimination law that have recently been brought over from Brussels to be quietly transferred from the politicians we do elect to the human rights judges we don’t. However, reading between the lines there could well be a little more to it than this.

Put bluntly, it is hard to avoid the impression that Strasbourg simply didn’t want the case. If it really wished it no doubt could have detected some implied mention somewhere by Lee’s lawyers of a human rights complaint. Instead, though, it chose not to get involved. Why? Deliberations of the court are not public, but one can make an educated guess. Like the EU’s European Court of Justice with its highly sensitive political feelers, Strasbourg also has a keen sense of the political climate. It is uncomfortably aware that its authority rests not on the mere words making up the ECHR, but on its acceptability to electorates and the willingness of elected governments to do as it says. And here there were very good reasons for it to tread carefully.

For one thing, the issues raised by Lee starkly pitted the LGBT and religious lobbies against each other. A fair number of both applied to be heard in Strasbourg, ranging from ultramontane Catholics to the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association. Any substantive decision would have alienated one side or the other; it also, as the court indeed stated, would have touched very raw nerves in the religiously divided world of Northern Ireland.

For another, this is also an area where European states themselves vary. Generally speaking, most of western Europe is on the secular, liberal, LGBT equality side and opposes cutting religion too much slack. Not so eastern Europe, however. Interestingly, for example, the government of Poland, a very strongly Catholic country, intervened in the present case on the side of religious freedom. For its part the Strasbourg court is, one suspects, cautious about stirring differences between governments if it can avoid it: especially where, as in the case of Poland last month, those governments have clashed with Strasbourg in their own courts.

Thirdly, when it comes to governments, Strasbourg is clearly aware of the fact that human rights scepticism is on the rise. Especially in eastern Europe, growing numbers of its judgments remain unfulfilled; and even the UK has at times refused to obey it — doing so for 12 years between 2005 and 2017 in the case of prisoners’ voting rights, for instance. Moreover, it is no longer unthinkable for mainstream politicians to question whether their governments should even remain members of the ECHR (especially in the UK), or, as Dominic Raab did last month, suggest putting other curbs on Strasbourg’s ability to dictate the agenda in domestic courts. It's understandable that the court might wish to hold back on unnecessary decisions that might have the effect of stirring this particular pot. 

All this suggests that we may see in future a greater willingness of the European Court of Human Rights to avoid controversy and to intervene less in national decisions, even where the instinct of the court is that something may be wrong. Although we may have to wait a year or two to be certain, we may even, to borrow a cliché, have seen the passing of peak human rights. If we have, that can only be a good thing.