An appeal in the so-called Bert and Ernie "gay cake" case was adjourned on Wednesday following a late intervention by the Northern Ireland Attorney General John Larkin, QC.
The three-judge Belfast Court of Appeal was set to begin a two-day hearing on Wednesday morning but questions raised by Mr Larkin over whether local legislation could be in breach of European human rights law prompted the judges to adjourn the full hearing until May.
The North’s Lord Chief Justice Sir Declan Morgan said it was “most unfortunate” that Mr Larkin’s intervention on Monday came just two days before the hearing was to begin but nonetheless the Attorney General’s point must be addressed.
“Although we have all tried to see if we could proceed with the case given the amount of work that has been done it seems to us that it is simply not possible to do that without running into some risk of unfairness in the hearing,” he said.
Mr Larkin raised questions about the validity of the devolved legislation under which the Ashers Baking Company was found guilty of discrimination against gay rights activist Gareth Lee.
In May last year the Belfast County Court ordered Ashers to pay Mr Lee £500 for refusing to bake and sell him a cake for the Queerspace campaign group featuring Sesame Street characters Bert and Ernie and bearing the slogan, “Support Gay Marriage”.
In court today a representative for Mr Larkin raised questions about the validity of devolved legislation, the Fair Employment Treatment Order and the Sexual Orientations Regulations, under which Ashers was originally prosecuted. He queried whether this legislation could be in breach of European human rights legislation.
Sir Declan Morgan decided that Mr Larkin’s issues would be tested in court on March 3rd while the full appeal would be heard over four days beginning on May 9th.
The case was initially scheduled to last two days but there was agreement in court that complex legal matters would have to be addressed.
This was reflected in an interchange between Mr Robin Allen, QC, representing Mr Lee and the North's Equality Commission, and the Lord Chief Justice. Addressing Mr Larkin's queries Mr Allen said, "I am diving into these matters with a little bit of trepidation." "And we all have lifejackets on at this stage," replied Sir Declan.
All the protagonists were in court for the adjourned hearing. The 26-year-old managing director of Ashers, Daniel McArthur was in the gallery with his wife Amy and his parents, Colin and Karen. Also present was Simon Calvert of the British Christian Institute which is supporting Ashers. Two DUP Assembly members, Edwin Poots and Paul Givan were also in court to support the McArthurs.
Friends of Mr Lee and representatives of the Equality Commission including chief commissioner, Dr Michael Wardlow sat beside Mr Lee.
“We came here today for this very important case and we were looking forward to hearing the arguments,” said Dr Wardlow. “We are very disappointed that at this very late stage another argument has come in and that has to be resolved.”
Mr Calvert, speaking on behalf of the McArthurs, said they were “neutral” on the issues raised by Mr Larkin and that they were not part of their case. “But it just confirms that this is a really important case and the court and all the parties want to make sure all the issues are properly rehearsed in court and we will be back on May 9th to do that,” he added.
DUP MLA Mr Givan said the case was “hugely significant” and it was right that all the details were covered.
“We have a broad coalition supporting the McArthur family that stretches now to (gay rights activist) Peter Tatchell. I think people recognise that whether you support what the Ashers company believe on this issue, or you don’t, freedom of speech is something that unites all of us and needs to be protected,” he added.
