In Bull & Anor v Hall & Anor  UKSC 73 the Supreme Court has unanimously dismissed the appeal of Mr and Mrs Bull against the Court of Appeal’s ruling that they had discriminated unlawfully against Mr Hall and Mr Preddy, a couple in a civil partnership, when they refused them a double-bedded room in their private hotel on the grounds that, as Christians, they believed that sexual activity should take place only within the context of (heterosexual) marriage. The appeal had been linked with Black v Wilkinson  EWCA Civ 820, a case on very similar facts (which we noted at the time), save that it concerned a bed & breakfast establishment rather than a private hotel and the couple were not in a civil partnership: permission had been given to Mrs Wilkinson to appeal to the Supreme Court so that the two cases could be heard together but she decided not to pursue her appeal further.
The regulatory framework
Regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007 (“the Regulations”). makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful. Regulation 3 defines “discrimination” and Regulation 3(1) states that direct discrimination exists where A treats B less favourably than others on the ground of B’s sexual orientation. Regulation 3(3) states that indirect discrimination exists when A applies a general policy or practice to B and others not of B’s sexual orientation which puts B at a particular disadvantage compared to those others, and where the policy or practice is not reasonably justified by reference to matters other than B’s sexual orientation. Regulation 3(4) provides that for Regulations 3(1) and 3(3), civil partnership and marriage are not to be treated as materially different.
The leading majority judgment was given by Lady Hale DPSC, with supplementary judgments from all the other members of the Court. The Court was divided overall as to whether the discrimination complained of was direct or indirect (because if it were the latter it would have been possible for the appellants to argue justification). Lady Hale, Lord Kerr and Lord Toulson held that the appellants’ policy constituted direct discrimination on grounds of sexual orientation. Lord Neuberger PSC and Lord Hughes held that the appellants’ policy constituted indirect discrimination; however, since they also concluded that the indirect discrimination complained of could not be justified, they, too, dismissed the appeal.
Lady Hale set out the problem very starkly. First, the case was a dispute between two sets of individuals, all four of whom had a protected characteristic under the legislation; and she noted that it was “a curiosity of the case” that the EHRC had pursued it on behalf of parties with one protected characteristic against parties with another. Secondly, there were “competing human rights in play”: the right of Mr and Mrs Bull under Article 9 ECHR to manifest their religion without unjustified limitation by the state and the right of Mr Hall and Mr Preddy under Articles 14 & 8 to enjoy their right to respect for their private lives without unjustified discrimination on grounds of sexual orientation.
Commenting on the Bulls’ complaint that instead of prosecuting Mr Hall’s and Mr Preddy’s case against them the Equality and Human Rights Commission should have taken a more neutral stance and sought merely to intervene, Lady Hale said that that contention
“… misunderstands the nature of the case. If Mr Preddy and Mr Hall were hotel keepers who had refused a room to Mr and Mrs Bull, because they were Christians (or even because they were an opposite sex couple), no doubt the Commission would have been just as ready to support Mr and Mrs Bull in their claim. Each of these parties has the same right to be protected against discrimination by the other” (para 4).
In the present case there were three issues at stake:
- had the respondents suffered direct discrimination?
- if not, had they suffered indirect discrimination and, if so, could it be justified? and
- should the Regulations be read down to be compatible with the right of the appellants to manifest their religious beliefs under Article 9 ECHR?
On the first point, Lady Hale, Lord Kerr and Lord Toulson held that the appellants’ policy constituted direct discrimination on grounds of sexual orientation. On the second, the Court unanimously held that if the appellants’ policy constituted indirect discrimination it was not justifiable. On the third, the Court unanimously held that though the Regulations engaged Article 9 ECHR (para 44), the interference with the appellants Article 9 rights was a justified and proportionate protection of the rights of others (para 51) and there was therefore no breach of Article 9 ECHR which would require the Regulations to be read down (para 42).
Lady Hale noted that in Black v Wilkinson at para 21, Dyson MR had confessed to “some difficulty” in agreeing that the decision in James v Eastleigh Borough Council  2 AC 751 (which was about free entry to the Council’s swimming pool for those who had reached state pension age: 60 for women but 65 for men) obliged him to conclude that there had been direct discrimination in Preddy v Bull. Lord Dyson’s view was that it was not a case of direct discrimination against a homosexual couple on grounds of sexual orientation, since there were other unmarried couples who would also be denied accommodation on the ground that they, too, were unmarried (para 23). In her view, however, it made a difference that the couple were civil partners (para 25):
“Does it make a difference that this couple were in a civil partnership? In my view, it does. The concept of marriage being applied by Mr and Mrs Bull was the Christian concept of the union of one man and one woman. That is clear from the reference to “heterosexual married couples” in the statement of policy which was current at the time; it is even clearer from the amended policy, which read ‘… out of a deep regard for marriage (being the union of one man to one woman for life to the exclusion of all others)…’ …
Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same-sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state…” (paras 25 & 26).
“With or without Regulation 3(4)”, Lady Hale could not see how discriminating between married couples and civil partners could be “anything other than direct discrimination on grounds of sexual orientation” (para 29).
It was not disputed that if the Bulls’ behaviour was not direct discrimination it was indirect discrimination within the meaning of Regulation 3(3). The Bulls sought to justify their policy by reference to their deeply-held belief that sexual intercourse outside marriage was sinful. Lady Hale was prepared to accept that their belief could encompass issues other than sexual orientation because it covered all kinds of unmarried couple. But, in her view, it would be hard to find that a belief that sexual intercourse between civil partners was sinful engaged a “matter other than [their] sexual orientation” because, by definition, such sexual intercourse had to be between persons of the same sex (para 35). So it was difficult to see how such discrimination against a same-sex couple in a civil partnership could ever be justified. Moreover, Parliament had created the institution of civil partnership precisely to give same-sex partners the same legal rights as partners of the opposite sex:
“They are also worthy of the same respect and esteem. The rights and obligations entailed in both marriage and civil partnership exist both to recognise and to encourage stable, committed, long-term relationships. It is very much in the public interest that intimate relationships be conducted in this way. Now that, at long last, same-sex couples can enter into a mutual commitment which is the equivalent of marriage, the suppliers of goods, facilities and services should treat them in the same way” (para 36: emphasis added).
As to the issue of compatibility with Article 9, she took the view that sexual orientation was a core component of personal identity which required fulfilment through relationships with others of the same orientation. Homosexuals had long been denied the possibility of fulfilling themselves through relationships with others: an affront to their dignity as human beings which the law had now recognised. But, given the continuing legacy of centuries of discrimination and persecution, it was understandable that Strasbourg required “very weighty reasons” to justify discrimination on grounds of sexual orientation:
“It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion” (para 53).
Lord Neuberger could not see why the fact that Mr Preddy and Mr Hall were civil partners altered Lady Hale’s conclusion that, had the two men not been in a civil partnership, the discrimination would have been indirect. Agreeing with him, Lord Hughes set out at para 88 the steps for a finding of direct discrimination, as follows:
“(i) The defendants treated the claimants less favourably than they would have treated a married couple.
(ii) There is no material difference between civil partners and married people: Regulation 3(4).
(iii) Therefore the only distinction between a married couple and civil partners is sexual orientation.
(iv) Sexual orientation is therefore the ground for (reason for) the less favourable treatment.
(v) Thus this is direct discrimination on grounds of sexual orientation”.
In his view, the flaw in the logic came at step (iv). The claimants, as civil partners, were a subset of the unmarried. There were two other subsets of the unmarried: a same-sex couple not in a civil partnership and an opposite-sex unmarried couple. The appellants treated all three subsets the same; and if their treatment of the first two groups was on grounds that they were not married, it was difficult to see how their treatment of civil partners could then be turned into less favourable treatment on grounds of sexual orientation: “The reality is that it is on grounds of being unmarried for all of them” (para 91).
However, because being married was an impossibility for same sex-couples, in the case of both same-sex subsets the defendants’ practice amounted to indirect discrimination on grounds of sexual orientation within the terms of Regulation 3(3)(b) and (c). It could not be justified under Regulation 3(3)(d) nor could it be saved by reliance on Article 9 (para 93).
Whether the discrimination complained of was direct or indirect turns on whether or not Lady Hale’s contention that civil partnership is “indistinguishable from the status of marriage in United Kingdom law” in almost every other respect bar the name. That proposition is at least arguable: for if the two are for all practical purposes the same, what was the point of the Marriage (Same Sex Couples) Act 2013? And it is very difficult to dismiss the “three subset” approach of Lord Hughes.
But whether, on the facts, the discrimination was direct or indirect, it is impossible to see how it could have been justified. The root of the case, so far as the clash of rights is concerned, is surely this: Mr Hall and Mr Preddy were not providing a service to Mr & Mrs Bull: Mr & Mrs Bull were providing a service to Mr Hall and Mr Preddy. And once one is in the position of service provider, one has to provide that service objectively and without discrimination.
Next question: will the Bulls seek to take their case to Strasbourg?
See also Rosalind English’s post at UKHRB: Supreme Court upholds gay discrimination ruling in hotel case and Alasdair Henderson’s subsequent post: Gay discrimination and Christian belief: Analysis of Bull v Hall in the Supreme Court
This appeal was bound to be lost, if it was fought, as it was, using a religious freedom argument, rather than using a freedom of conscience argument, as it should have been. The following comments of judges VUČINIĆ and DE GAETANO in the dissenting judgment in Ladele explain this vitally important distinction.
“66. The … case is not so much one of freedom of religious belief as one of freedom of conscience – that is, that no one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience. Although freedom of religion and freedom of conscience are dealt with under the same Article of the Convention, there is a fundamental difference between the two which, in our view, has not been adequately made out in … the judgment. Even Article 9 hints at this fundamental difference: whereas the word “conscience” features in 9 § 1, it is conspicuously absent in 9 § 2. Conscience – by which is meant moral conscience – is what enjoins a person at the appropriate moment to do good and to avoid evil. In essence it is a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed. This rational judgment on what is good and what is evil, although it may be nurtured by religious beliefs, is not necessarily so, and people with no particular religious beliefs or affiliations make such judgments constantly in their daily lives. The pre-eminence (and the ontological roots) of conscience is underscored by the words of a nineteenth century writer who noted that “…Conscience may come into collision with the word of a Pope, and is to be followed in spite of that word.”
If the Bulls appeal to the ECtHR, their legal team must advance a *conscience* argument rather than a *religious* argument. Religious people should not be losing cases like this, almost deliberately it would seem, because they demand special treatment, their religious rights. They should win cases like this, by defending the freedom of *conscience* that is *everybody’s* right, whether he or she is religious or not.
Does your public sector employer make you work all seven days of the week? Bring a claim on your right to a private and family life, and win. Or get a Christian activist law shop to bring a claim for you, on some supposed, fictitious right of all Christians to have Sunday as their weekly day off, and lose. Is it against your conscience to let a double room to two homosexuals? Simply say so in court, and win. Or let a Christian law shop say nothing about your conscience, and instead assert that letting a double room is against your *religion*, and lose.
When Christian Concern For Our Nation lives up to its name, and protects rights everybody wants, like conscience and private and family life, it will start to win cases and earn gratitude even from Christianity’s enemies, whose rights it will be protecting too. At the moment, it is narrowly focused on proving persecution of those who think they need the highly unpopular religious rights, making the name Christian Concern For Our Christians more apt for what it actually does.
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On spiked I have argued that the case is an illustration of intolerance dolled up as equality:
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