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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/83.html Cite as: [2012] EWCA Civ 83, [2012] 2 All ER 1017, [2012] WLR(D) 30, [2012] 1 WLR 2514, [2012] HRLR 11, [2012] Eq LR 338 |
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ON APPEAL FROM Bristol Civil Justice Centre
His Honour Judge Rutherford DL
9BS02095 and 9BS02096
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HOOPER
and
LADY JUSTICE RAFFERTY DBE
____________________
BULL & BULL |
Appellants |
|
- and - |
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HALL & PREDDY |
Respondent Respondent |
____________________
Robin Allen QC and Ms Catherine Casserley (instructed by Equality and Human Rights Commission) for the Respondents
Hearing dates: 8th and 9th November 2011
____________________
Crown Copyright ©
Lady Justice Rafferty
The statutory framework
"3 Discrimination on grounds of sexual orientation
(1) For the purposes of these Regulations, a person ("A") discriminates against another ("B") if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
(3) For the purposes of these Regulations, a person ("A") discriminates against another ("B") if A applies to B a provision, criterion or practice—
(a) which he applies or would apply equally to persons not of B's sexual orientation,
(b) which puts persons of B's sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),
(c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than B's sexual orientation.
(4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances."
The effect of Regulation 3(4) is to make it clear in Regulation 3(1) that the fact that A or B is a civil partner and that the other is married is not a material difference for the purposes of Regulation 3(1).
"4. Goods, facilities and services
(1) It is unlawful for a person ("A") concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person ("B") who seeks to obtain or to use those goods, facilities or services—
(a) by refusing to provide B with goods, facilities or services,
(2) Paragraph (1) applies, in particular, to—……….…
(b) accommodation in a hotel, boarding house or similar establishment…..…"
Regulation–6 - exceptions to Regulation–4 - reads where relevant:
"6 Exceptions to regulation[s] 4 …
(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention."
Regulation –4 - an exemption for religious organizations - reads where relevant:
"14 Organisations relating to religion or belief.
(1) Subject to paragraphs (2) and (8) this regulation applies to an organisation the purpose of which is—
(a) to practise a religion or belief,
(b) to advance a religion or belief,
(c) to teach the practice or principles of a religion or belief,
(d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief…."
The Regulations and the Human Rights Act
1998
"Article 8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 9 Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 14 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 17 Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."
"Section 13 Freedom of thought, conscience and religion.
(1) If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right."
The developed arguments of the Appellants
"35. It seems to me that a correct analysis of the position of the defendants is that they discriminate on the basis of marital status…….If that is ... correct…then Regulation 3(4) comes into play. There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?
36. It is important to note that Regulation 3(4) only deals with civil partnerships. I say nothing about what would have been the position if the claimants had not entered into such a legal relationship or indeed if they were a heterosexual unmarried couple.
37. I have reached the clear conclusion that on a proper analysis of the defendants' position on the facts of this particular case the only conclusion which can be drawn is that the refusal to allow them to occupy the double room which they had booked was because of their sexual orientation and that prima facie the treatment falls within the provision of Regulation 3(1) and that this is direct discrimination."
"Para 7. ……. When the claim is based on direct discrimination… the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
Para 11. …employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case."
"164. I am inclined to agree with the submissions for the Secretary of State both as to the absence of direct discrimination and as to the absence of indirect discrimination. The consistent approach [of the ECJ], … has been to hold that married partners are not in a comparable position to same-sex partners. It is true that until [the Directive] came into force there was no prohibition of discrimination on grounds of sexual orientation in Community law. There is also some force in [the] submission that the application of a condition with which same-sex partners are unable to comply because they are precluded from marrying is discriminatory. I am not persuaded, however, that those considerations ……..justify the conclusion that [the] previous statements [of the ECJ] as to the lack of comparability between marriage and other relationships no longer hold good."
"…In general the applicants contend that the Regulations have the effect that the protection afforded to sexual orientation in accordance with the right to respect for private life under Article 8 and Article 14 of the Convention outweighs the protection afforded to the manifestation of religious belief under Article 9 and 14 of the European Convention so that there is a lack of fair balance between the respective rights.
53. On the other hand the respondent contends that this Court should not undertake an examination of the Regulations in the abstract as civil liability…will be fact specific and should be determined on a case by case basis…in the County Court."
"Are Regulations 3(1) and (4) incompatible with the European Convention?
38. I think that the answer to this question must be "no". The Regulations recognise the article 8 right of the claimants to respect for their private and family life. The defendant's right to have their private and family life and their home respected is inevitably circumscribed by their decision to use their home in part as an hotel. The regulations do not require them to take into their home (that is the private part of the hotel which they occupy) persons such as the claimants and arguably therefore do not affect the article 8 rights of the defendants. If I am wrong about that then the regulations are necessary to protect the convention rights of the claimants and are a proportionate response to achieve that end.
39. The regulations do affect the right of the defendants to manifest their religion which is a right protected under article 9.2. This right however is not absolute and can be limited to protect the rights and freedoms of the claimants. It seems to me that in so far as the regulations do affect this right they are, as I have said above, a necessary and proportionate intervention by the state to protect the rights of others.
40. The regulations give effect to Article 14, namely the prohibition of discrimination."
"Can the Regulations be read in a way compatible with the Convention?
41. I can deal with this very shortly. It only arises if I am wrong in my view that the regulations are not incompatible. If I am wrong then it seems to me that there is no way of construing the regulations in a way which would make them compatible and I, as a judge in the County Court, have no alternative but to apply them.
42. It therefore follows that I find that the defendants have breached Regulation 4(1) and therefore acted unlawfully. Indeed it was accepted that if I found discrimination under Regulation 3 (whether direct or indirect) then this would be inevitable and there was no argument addressed to me in respect of Regulation 4 during the trial."
The developed submissions of the Respondents on direct discrimination
"This was…direct discrimination…It follows that, however justifiable….however benign the motives ..., the law admits of no defence."
"7.14 The Regulations will make clear that married persons and civil partners are in materially the same position for the purposes of the regulations. This would remove a possible obstacle to civil partners bringing a discrimination claim on grounds of sexual orientation against a provider of goods and services who denied them access to a benefit or service that was being offered to a married person in a similar situation."
Conclusion on the issue of direct discrimination under the Regulations
Article 8
Article 9
"The Strasbourg jurisprudence on Article 9 of the Convention
54…Article 9(1) provides that everyone has 'the right to freedom of thought, conscience and religion' and to manifest that religion, but Article 9(2) states that the right to manifest religion or beliefs 'shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society' for, inter alia, 'the protection of the rights and freedoms of others'. It is clear that the rights protected by the article are qualified, and that it is only beliefs which are 'worthy of respect in a democratic society and are not incompatible with human dignity' which are protected – Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, paragraph 36. As Lord Hoffmann put it in R (SB) v Governors of Denbigh High School [2007]1AC 100, paragraph 50, 'Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing'.
55 This appears to me to support the view that Ms Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community. This assessment of the assistance to be obtained from Article 9 in the present case is reinforced if one looks a little more closely at decisions of the Strasbourg Court.
56 In Pichon and Sajous v France Application 49853/99 (2 October 2001), the Strasbourg Court pointed out that 'the main sphere protected by Article 9 is that of personal convictions and religious beliefs' although it 'also protects acts that are closely linked to those matters such as acts of worship or devotion forming part of the practice of a religion or a belief'. Accordingly, the article did not protect pharmacists who claimed that their 'religious beliefs justified their refusal to sell contraceptives' as 'the sale of contraceptives is legal and occurs nowhere other than in a pharmacy', and the pharmacists could 'manifest [their] beliefs in many ways outside the professional sphere.'
57.[In[ C v United Kingdom App. No.10358/83, (1983) 37 DR 142, the Commission …said at 147, that the article 'primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum.' Accordingly, as it went on to explain, Article 9 'does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief'.
58 Accordingly, in Sahin v Turkey (2007) 44 EHRR 5, the Grand Chamber … said that the need 'to maintain and promote the ideals and values of a democratic society', … can properly lead to 'restrict[ing] other rights and freedoms ... set forth in the Convention' …[and] that 'Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account'.
59 By contrast, decisions of the Strasbourg Court such as Salguerio da Silva Mouta v Portugal (2001) 31 EHRR 47 and EB v France (2008) 47 EHRR 509 emphasise that, ….'[w]here sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8'. … observations such as these demonstrate the importance which the Convention should be treated as ascribing to equality of treatment irrespective of sexual orientation.
60 Casting one's eyes beyond Europe, it is worth quoting what Sachs J, … said in Christian Education South Africa v Minister of Education (2000) 9 BHRC 53, paragraph 35:
'The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.'
61 The conclusion reached by the South African Supreme Court in that case was that a ban on corporal punishment had to be complied with by Christians whose religious beliefs extended to believing in the right, indeed, in certain circumstances, the obligation of a teacher to chastise a child physically. This conclusion was, of course, consistent with the subsequent decision to much the same effect of the House of Lords in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246."
"Accordingly, the article did not protect hoteliers who claimed that their 'religious beliefs justified their refusal to provide double beds to homosexual couples' as 'the provision of hotel rooms is legal and occurs nowhere other than in an hotel', and the hoteliers could 'manifest [their] beliefs in many ways outside the commercial sphere."
"22. In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.
23 The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.
25 So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime."
Section 13 Human Rights Act
The EU Charter
General comments in conclusion
Lord Justice Hooper
The Chancellor
"monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons and that homosexual sexual relations (as opposed to homosexual orientation), and heterosexual sexual relations outside marriage, are sinful"
Mr Preddy and Mr Hall do not suggest that such belief was not genuinely held nor do they suggest that Mr and Mrs Bull do not enjoy the right to hold it under Article 9 ECHR. Third, in the management of their hotel Mr and Mrs Bull manifested their belief in their refusal to let any of the three double bedded rooms to any unmarried couple – a restriction which was not applied to any of the other four rooms in the hotel.
"For the purposes of these Regulations, a person ("A") discriminates against another ("B") if, on the grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances)."
Sub-paragraph (4) provides, so far as relevant:
"For the purposes of paragraphs (1) ... the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances."
"Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
The restriction on the letting of the hotel's double bedded rooms applied by Mr and Mrs Bull in the management of their hotel is a manifestation of their religious belief within Article 9(2).
"Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 14 provides that:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
If any of those rights is engaged then the manifestation of their religious beliefs by Mr and Mrs Bull cannot excuse their direct discrimination of Mr Preddy and Mr Hall.
"39...It seems to me that in so far as the regulations do affect this right they are, as I have said above, a necessary and proportionate intervention by the state to protect the rights of others.
40. The regulations give effect to Article 14, namely the prohibition of discrimination."