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Cloisters' barristers Robin Allen QC and Catherine Casserley win Supreme Court battle in landmark sexual orientation case

Cloisters' barristers Robin Allen QC and Catherine Casserley win Supreme Court battle in landmark sexual orientation case

Catriona Stirling considers the judgment of the Supreme Court in the landmark case of Bull & Bull v Hall and Preddy[2012] UKSC 73, in which it has confirmed that it was unlawful direct discrimination on the ground of sexual orientation for hotel owners to refuse to let a double room to a couple in a civil partnership. 

Summary  

Mr Preddy and Mr Hall are civil partners. In September 2008, they booked a double bedroom at a hotel in Cornwall owned by Mr and Mrs Bull for a short break. Mr and Mrs Bull are devout Christians who had a policy of only letting double-bedded accommodation to heterosexual married couples, in accordance with their religious beliefs. When Mr Preddy and Mr Hall arrived at the hotel for their holiday, the manager refused to honour their booking and they were informed that double rooms were for married couples only.

The Supreme Court has now upheld the decision of the Court of Appeal that this refusal amounted to unlawful discrimination on the ground of sexual orientation. The majority of the Justices held that the refusal to let a double room to Mr Hall and Mr Preddy amounted to direct discrimination. The minority considered that the refusal was indirect, rather than direct, discrimination. All of the Justices agreed that, if it was indirect discrimination, it could not be justified, and that there was no incompatibility with Mr and Mrs Bull’s rights under the European Convention on Human Rights (‘the Convention’).

Direct discrimination

Mr and Mrs Bull had contended that they did not directly discriminate against Mr Preddy and Mr Hall, as the refusal of the double room was not on the ground of their sexual orientation, but on the ground that they were not married to one another. This argument was robustly rejected by the majority of the Court.  

Lady Hale and Lord Toulson viewed the criterion of marriage or civil partnership as indissociable from the sexual orientation of those who qualify to enter it. At the present time, marriage was only available between a man and a woman and civil partnership was only available between two people of the same sex. There was an exact correspondence between the advantage conferred in allowing a double bed to one and the disadvantage imposed in denying it to the other.

When it came to denying a double bed to Mr Preddy and Mr Hall, which they would have given to a heterosexual married couple, Mr and Mrs Bull were not only applying the criterion that they were unmarried. They were applying a criterion that their legal relationship was not that of one man and one woman, in other words a criterion indistinguishable from sexual orientation. Mr and Mrs Bull would undoubtedly have denied a double bed to a same sex couple who were married under some foreign law which allowed it.

Lord Kerr and Lord Toulson placed significant weight upon Regulation 3(4) of the Equality Act (Sexual Orientation) Regulations 2007 (‘Regulations’), the legislation in force at the relevant time. The provided that the fact that one person is a civil partner while the other is married should not be treated as a material difference in their relevant circumstances such that less favourable treatment on the ground of sexual orientation would not amount to direct or indirect discrimination.

Their Lordships considered that, by virtue of Regulation 3(4), Mr Hall and Mr Preddy, being in a civil partnership, could not be distinguished, as a matter of law, from a couple who were married. There was no material difference between them and a married couple. Mr and Mrs Bull could not, therefore, legally assert that they treated Mr Preddy and Mr Hall differently because they were not married. On that account, the only remaining basis on which they were treated less favourably was their sexual orientation. Their treatment therefore amounted to direct discrimination on the ground of sexual orientation, whether or not their sexual orientation was the factor operating in the minds of Mr and Mrs Bull. However, Lord Kerr stated that, had it not been for the effect of Regulation 3(4), he would have found the discrimination in this case to be indirect.

Lady Hale had not considered Regulation 3(4) to be of assistance, as it was ostensibly about a different aspect of the discrimination inquiry, namely whether the circumstances of the people being compared were the same or not materially different from one another.

Lord Neuberger, in the minority along with Lord Hughes, was of the view that the discrimination was against those who were unmarried. An unmarried heterosexual couple would have been treated in precisely the same way and the fact that Mr Hall and Mr Preddy were in a civil partnership did not, in his view, make any difference. He agreed with Lady Hale that Regulation 3(4) was of not assistance in this case. He considered that that provision could not render cases of indirect discrimination to be direct discrimination, and that, had it been Parliament’s intention to change the normal and well-established distinction between direct and indirect discrimination where a civil partnership was involved, it would have said so in the Civil Partnership Act.

Lord Hughes agreed with Lord Neuberger that this was not a case of direct discrimination. He did not consider that sexual orientation was the ground for the less favourable treatment. It was an error to concentrate on the characteristics of the claimants in this case, rather than on the defendants’ reasons for treating them as they did. The claimants, being in a civil partnership, were a subset of the unmarried, but the defendants had been found to treat all of the unmarried less favourably. The reality was that the reason for the less favourable treatment was on the ground of being unmarried, rather then ground of sexual orientation.

Indirect discrimination

It was accepted by all parties that, if this was not direct discrimination, then it was indirect discrimination. The policy of letting double-bedded rooms only to married couples, while applied to heterosexual and homosexual people alike, undoubtedly put homosexual people as a group, and Mr Preddy and Mr Hall, at a disadvantage when compared with heterosexuals, as they could not enter into a status which Mr and Mrs Bull would regard as marriage.

Mr and Mrs Bull argued that this indirect discrimination could be justified. They contended that they should not be compelled to run their business in a way which conflicted with their deeply held religious beliefs and that a fair balance should be struck between their right to manifest their faith and Mr Preddy’s and Mr Hall’s right to obtain goods, facilities and services without discrimination on grounds of their sexual orientation.

Regulation 3(3)(d) of the Regulations provided that indirect discrimination could only be justified by reference to matters other than the sexual orientation of the individual being discriminated against.

Lady Hale, with whom all the others agreed, considered that, while a belief that sexual intercourse outside marriage is sinful could be a matter other than sexual orientation, because it covers all kinds of unmarried couple, it would be hard to find that a belief that sexual intercourse between civil partners was sinful was a matter other than sexual orientation, because by definition such sexual intercourse has to be between persons of the same sex. Thus, on the wording of the Regulation itself, it was difficult to see how discriminating in this way against a same sex couple in a civil partnership could ever be justified.

In addition, she noted that Parliament had created the institution of civil partnership in order that same sex partners could enjoy the same legal rights as partners of the opposite sex and that the rights and obligations entailed in both marriage and civil partnership existed both to recognise and to encourage stable, committed long-term relationships, which were in the public interest. Now that same sex couples could 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.

To permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the anti-discrimination legislation, which should not be permitted. Furthermore, it was notable that Parliament had not inserted a conscientious objection clause into the legislation for the benefit of individuals who had religious objections to equal treatment of people of homosexual orientation. Moreover, Mr and Mrs Bull were free to manifest their religion in many other ways. No defence of justification could therefore arise.

Mr and Mrs Bull’s right to manifest their religious beliefs under Article 9 of the Convention did not assist them. The limitation that was being imposed upon this right was lawful, being proportionate, in pursuance of a legitimate aim, namely the right of Mr Hall and Mr Preddy not to be unlawfully discriminated against, and in accordance with the law.

Implications

The Court emphasised that there was no question in this case of giving precedence to the rights of one protected community over another. It stressed that, had roles been reversed, the Bulls would have been entitled to the same protection against discrimination as Mr Hall and Mr Preddy.

However, it also hinted at the possibility of the law being willing in the future to make “reasonable accommodation” – a concept used exclusively at present in the disability discrimination context - between competing interests in some circumstances, as part of the assessment of whether a limitation on a Convention right is proportionate. This leaves the door open to being able to use religious belief to justify otherwise unlawful discrimination in some circumstances.

Such circumstances are likely to be limited, as the Court made it clear that it would be slow to recognise that a prohibition on unlawful discrimination could amount to a disproportionate limitation on a Convention right. Notwithstanding this, any move towards the concept of “reasonable accommodation” of religious beliefs, which has not previously been countenanced in UK discrimination law, signals a material change. This case is, therefore, likely to have significant ramifications in the future where there is a “clash” of different rights whereby individuals seek to rely on their own rights under the Convention to justify unlawful discrimination against others.

The case is also of interest by reason of the strong disagreement between the Justices as to whether the Bulls’ treatment of Mr Hall and Mr Preddy amounted to direct or indirect discrimination and their detailed analysis of this question.

Robin Allen QC and Catherine Casserley of Cloisters appeared for Mr Hall and Mr Preddy, instructed by the Equality and Human Rights Commission.

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