Hall and another v Bull and another
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Toulson,Lord Neuberger,Lord Hughes,Lady Hale |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] UKSC 73 |
| Date | 27 November 2013 |
| Court | Supreme Court |
[2013] UKSC 73
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Hughes
Lord Toulson
Appellants
Aidan O'Neill QC
Sarah Crowther
Sarah Ramsey
(Instructed by Aughton Ainsworth)
Intervener
Karon Monaghan QC
Henrietta Hill
(Instructed by Liberty)
Respondents
Robin Allen QC
Catherine Casserley
(Instructed by Equality & Human Rights Commission)
Heard on 9 and 10 October 2013
Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that the couple have entered into a civil partnership? These are questions which would have been unthinkable less than two decades ago. That they can now be asked is a measure of how far we have come in the recognition of same sex relationships since the repeal of section 28 of the Local Government Act 1988, in Scotland in 2000 and in England and Wales in 2003.
The general rule is that suppliers of goods and services are allowed to pick and choose their customers. They were first prohibited from discriminating against a would-be customer on grounds of sex, race or disability, by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. Although to some extent inspired by the European Union's principle of equal treatment, some of this legislation went further than was then strictly required by EU law. Then came Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Its purpose was to "lay down a general framework for combating discrimination on the further grounds of religion or belief, disability, age or sexual orientation, as regards employment and occupation" (article 1). The United Kingdom implemented that Directive by amendments to the Disability Discrimination Act and by Regulations dealing with discrimination on grounds of religion or belief, age and sexual orientation in those fields (see the Employment Equality (Religion of Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006).
That was as far as EU law required, and still requires, it to go. But Parliament then passed the Equality Act 2006. This established the Equality and Human Rights Commission (EHRC) and extended the prohibition of discrimination on grounds of religion or belief into, among other things, the provision of goods, facilities and services. It also permitted the Secretary of State to make regulations similarly extending the scope of the prohibition of discrimination on grounds of sexual orientation. The Equality Act (Sexual Orientation) Regulations 2007, with which this case is concerned, were the result. All of this legislation has since been replaced (for a case such as this) by the Equality Act 2010, but the principles, concepts and provisions with which we are concerned have remained much the same.
Thus we have a dispute between two sets of individuals, Christian hotel keepers and same sex civil partners, all of whom have what is now called a "protected characteristic", that is a characteristic which protects them against discrimination in a wide variety of areas of activity. It is a curiosity of the case, of which Mr Aidan O'Neill QC complains on behalf of Mr and Mrs Bull, that the EHRC has prosecuted this case on behalf of parties with one protected characteristic against parties with another. It is understandable that his clients should feel this way and a more neutral stance of the Commission might have been to seek to intervene in, rather than to prosecute, these proceedings. But it 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.
The issues in discrimination law are difficult enough, but there are also competing human rights in play: on the one hand, the right of Mr and Mrs Bull (under article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) to manifest their religion without unjustified limitation by the state; and on the other hand, the right (under article 14) of Mr Preddy and Mr Hall to enjoy their right (under article 8) to respect for their private lives without unjustified discrimination on grounds of their sexual orientation. But while both parties can assert their rights against the state, Mr Preddy and Mr Hall cannot assert their rights directly against Mr and Mrs Bull, who are private citizens.
Regulation 3 defines two types of discrimination, direct and indirect. It reads where relevant:
" 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."
If there was discrimination in this case, it was prohibited by Regulation 4(1), which makes it 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 by … refusing to provide B with goods, facilities or services". By Regulation 4(2) this "applies, in particular, to … accommodation in a hotel, boarding house or similar establishment".
There are two exceptions in the Regulations which are relevant to the issues in this case, not because they do cover the situation here, but because they do not. Regulation 6(1) provides an exception from regulation 4 for people who take into their own home and treat as members of the family, children, elderly persons or persons requiring a special degree of care and attention. Regulation 14 makes a specific and carefully defined exception from this prohibition (and others) for religious organisations, as opposed to individuals such as Mr and Mrs Bull who hold particular religious beliefs.
Mr Preddy and Mr Hall are civil partners who live in Bristol. They planned a short break in Cornwall. On 4 September 2008, Mr Preddy made a telephone booking at the Chymorvah Private Hotel in Marazion, of a double bedroom for the nights of 5 and 6 September. Mr and Mrs Bull own the Hotel, and run it together with their cousin, Mr Quinn. They are devout Christians who sincerely believe (as the judge put it) "that the only divinely ordained sexual relationship is that between a man and a woman within the bonds of matrimony". In 2008 their online booking form stated: "Here at Chymorvah we have few rules, but please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only – thank you". Twin bedded and single rooms, on the other hand, would be let to any person regardless of marital status or sexual orientation.
Mr Preddy did not see this clause, because he booked by telephone, and Mrs Bull did not follow her usual practice of asking whether the reservation was for a man and his wife, because she was unwell when she got up to answer the telephone which had been ringing for some time. When Mr Preddy and Mr Hall arrived at the hotel on 5 September, they were met by Mr Quinn, who informed them that the double-bedded rooms were for married couples only. Mr Preddy said that they were in a civil partnership. Mr Quinn "explained that we were Christians and did not believe in civil partnerships and that marriage is between a man and a woman and therefore we could not honour their booking". It was accepted that this was not done in a demeaning manner, but there were other guests present. The refusal was "very hurtful" to the couple, who left the hotel and found alternative accommodation at another hotel. The deposit which they had paid was re-credited to their account.
These proceedings were launched, with the support of the EHRC, in March 2009 after a letter before action in February. In their response to that letter, Mr and Mrs Bull denied that they had unlawfully discriminated against the couple on the basis of their sexual orientation and claimed that the Regulations must be applied in a manner compatible with their Convention rights, in particular the right to manifest their religion. Without prejudice to that, they offered to reimburse the...
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