JUDGMENT
Bull and another (Appellants) v Hall and another
(Respondents)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
27 November 2013
Heard on 9 and 10 October 2013
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)
LADY HALE
1. 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.
2. 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).
3. 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.
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4. 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.
5. 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.
The Regulations
6. 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).
…
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(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.”
7. 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”.
8. 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.
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The History
9. 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.
10. 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.
11. 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
additional expense to which the couple had been put in having to find alternative
accommodation, together with a modest sum for the inconvenience.
12. This offer having been rejected, the claim came before His Honour Judge
Rutherford in the Bristol County Court. He held that the refusal to allow the couple
to occupy the double room they had booked was due to their sexual orientation and
was direct discrimination within the meaning of regulation 3(1). He held that the
Regulations were a necessary and proportionate intervention by the state to protect
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the rights of others and thus not incompatible with the Convention rights of Mr and
Mrs Bull. Alternatively, if it was not direct discrimination, it was unjustified
indirect discrimination within the meaning of regulation 3(3). He awarded each of
the claimants £1,800 in damages for injury to feelings, to include the extra cost of
their alternative accommodation.
13. The judge himself gave permission to appeal. The Court of Appeal
unanimously dismissed the appeal: [2012] EWCA Civ 83; [2012] 1 WLR 2514.
They held that this was direct discrimination on grounds of sexual orientation and
thus not capable of justification. The hotel’s policy was a manifestation of the
owners’ religious beliefs within the meaning of article 9. But the limitation
imposed upon them by the Regulations was necessary in a democratic society for
the protection of the rights of others.
14. A year later, the Court of Appeal decided the case of Black v Wilkinson
[2013] EWCA Civ 820, [2013] 1 WLR 2490. The facts were very similar, save
that this was a bed and breakfast establishment rather than a private hotel and the
same sex couple were not in a civil partnership. Had the court not been bound by
Preddy v Bull to hold that this was direct discrimination, they would have held the
discrimination to be indirect, but not justified. The interference with the right to
respect for the defendant’s home and the right to manifest her religion was
justified as a proportionate means of protecting homosexuals from discrimination
on the ground of their sexual orientation. Permission was given to appeal to this
court so that the two cases could be heard together, but Mrs Wilkinson decided not
to pursue her appeal. This court is therefore solely concerned to decide the issues
as they arise in relation to a same sex couple who are civil partners.
15. Those issues (in the order in which I propose to discuss them) are, firstly,
whether this was direct or indirect discrimination on the ground of sexual
orientation; secondly, if it was indirect discrimination, whether the policy was
justified under regulation 3(3)(d); and thirdly, if it would otherwise be unlawful
discrimination within the meaning of regulation 3(1) or 3(3), whether the
Regulations fall to be “read and given effect” compatibly with the appellants’
Convention rights under section 3 of the Human Rights Act 1998.
Direct or indirect discrimination?
16. The distinction between direct discrimination, as defined in regulation 3(1),
and indirect discrimination, as defined in regulation 3(3), is crucial: not because
direct discrimination can never be justified, as Mr Robin Allen QC reminds us, but
because the justifications are expressed in the legislation. There is no general
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defence of justification as there is in regulation 3(3)(d). Yet the distinction is by no
means easy to draw, as this case illustrates all too clearly.
17. Put simply, Mr and Mrs Bull state that they did not discriminate against Mr
Preddy and Mr Hall on the ground of their sexual orientation but on the ground
that they were not married to one another. They have applied exactly the same
policy to unmarried opposite sex couples. While discrimination against a person on
the ground that she is married was outlawed in the sphere of work by the Sex
Discrimination Act 1975, it has never been unlawful to discriminate against the
unmarried in any of the other areas covered by the Sex Discrimination Act 1975
and now the Equality Act 2010. They accept that it was indirect discrimination, as
opposite sex couples are able to marry while same sex couples currently cannot do
so, and so the policy puts the latter at a particular disadvantage.
18. The Court of Appeal (in para 40 of the judgment of Rafferty LJ and para 61
of the judgment of Sir Andrew Morritt) based their finding of direct discrimination
on the well-known, if controversial, case of James v Eastleigh Borough Council
[1990] 2 AC 751. The Council allowed people who had reached state pension age
free entry to its swimming pool. All women reached that age at 60 while all men
reached it at 65. There was thus an exact correspondence between the criterion and
the protected characteristic of sex. Hence their lordships decided, albeit by a
majority of three to two, that this was direct discrimination on grounds of sex and
could not be justified whatever the laudable motives of the Council in fixing on
retirement age as the criterion for free entry.
19. Had it been available to them, their lordships might well have cited the
words of Advocate General Sharpston twenty years later, in Bressol v
Gouvernement de la Commaunité Française (Case C-73/08) [2010] 3 CMLR 559,
para 56:
“I take there to be direct discrimination when the category of those
receiving a certain advantage and the category of those suffering a
correlative disadvantage coincide exactly with the respective
categories of persons distinguished only by applying a prohibited
classification.”
In this she was building on the opinion of Advocate General Jacobs in Schnorbus v
Land Hessen (Case C-79/99) [2000] ECR I-10997, para 33:
“The discrimination is direct where the difference in treatment is
based on a criterion which is either explicitly that of sex or
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necessarily linked to a characteristic indissociable from sex. It is
indirect where some other criterion is applied but a substantially
higher proportion of one sex than of the other is in fact affected.”
20. Applying Advocate General Jacobs’ test, it can be argued that a marriage
criterion is “indissociable from sexual orientation”, in that at present persons of
hetero-sexual orientation can marry and persons of homosexual orientation cannot.
I leave aside Mr O’Neill’s argument that persons of homosexual orientation are
free to marry persons of the opposite sex: examples abound in history of people
who have done so (I would instance the long, happy and fruitful marriage of
Victoria Sackville-West and Harold Nicholson). They are not free to marry a
person who shares their own orientation.
21. But applying the test as stated by Advocate General Sharpston, there is not
an exact correspondence between those suffering the disadvantage of being denied
a double bed, and those enjoying the correlative advantage of being allowed one,
with the protected characteristic. While all same sex couples were denied, so too
were some opposite sex couples. Furthermore, I note that in Schnorbus, the
criterion (of having served in the army) was one which men could meet but woman
could not; and in Bressol, the criterion (of having the right to reside in Belgium)
was one which all Belgian nationals could meet, but only some foreigner nationals;
yet in both cases the Court of Justice held that the discrimination was indirect
rather than direct.
22. We do not have to construe these Regulations in accordance with the
jurisprudence of the Court of Justice, because they are not implementing a right
which is (as yet) recognised in EU law. But as the same concepts and principles
are applied in the Equality Act 2010 both to rights which are and rights which are
not recognised in EU law, it is highly desirable that they should receive
interpretations which are both internally consistent and consistent with EU law.
23. Schnorbus and Bressol (which were applied by this Court in Patmalniece v
Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783)
demonstrate that this case is not on all fours with James v Eastleigh Borough
Council. There is not an exact correspondence between the disadvantage and the
protected characteristic. In Black v Wilkinson [2013] 1 WLR 2490, at para 21,
Lord Dyson MR confessed to “some difficulty in agreeing with the view that the
decision in James’s case compels the conclusion that there was direct
discrimination in Preddy v Bull.” In his view, this was not a case of direct
discrimination against a homosexual couple on the ground of their sexual
orientation, since there were other unmarried couples who would also be denied
accommodation on the ground that they too were unmarried.
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24. Were this case solely about discrimination against the unmarried, I would
agree with him. He found support in the decision of the Judicial Committee of the
Privy Council in Rodriguez v Minister of Housing of Government of Gibraltar
[2009] UKPC 52, [2010] UKHRR 144. This too was a complaint by a same sex
couple against a criterion which restricted the right to succeed to a government
tenancy to couples who were married or had children together. It was a human
rights case under the Constitution of Gibraltar, where the distinction between
direct and indirect discrimination is not as crucial as it is in our domestic antidiscrimination law. Nevertheless, in the opinion of the Board, this was not direct
discrimination on grounds of sexual orientation, because other unmarried couples
suffered the same disadvantage. But it was more severe than most cases of indirect
discrimination, because the criterion was one which the couple would never be
able to meet: “Thus it is a form of indirect discrimination which comes as close as
it can to direct discrimination” (para 19).
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) . . .”; and was made clear to the couple by what Mr
Quinn said when Mr Preddy told him that they were civil partners.
26. 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. Its equivalence to marriage is
emphasised by the provision in regulation 3(4) that being married and being a civil
partner is not to be treated as a material difference for the purpose of a finding of
either direct or indirect discrimination.
27. Regulation 3(4) is by no means easy to construe. It does not state in so
many words that it is unlawful to discriminate between married couples and civil
partners. It expressly applies equally to direct discrimination under regulation 3(1)
and to indirect discrimination under regulation 3(3). For that reason, it is difficult
to regard it as turning what would otherwise be indirect discrimination into direct.
It is ostensibly about a different aspect of the discrimination inquiry, which is
whether the circumstances of the people being compared are the same or not
materially different from one another. In other words, it provides that people who
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are married and people who are civil partners are to be regarded as similarly
situated.
28. In Maruko v Versorgungsanstalt der Deutschen Bühnen (Case C-267/06)
[2008] 2 CMLR 914, the Grand Chamber of the European Court of Justice held
that it was for the national court to decide whether a surviving same sex “life
partner” was in a comparable situation to a surviving spouse (para 73). That
decision is made for us by regulation 3(4). But the Grand Chamber went on to hold
that, if they were in a comparable situation, then to treat a surviving life partner
less favourably than a surviving spouse, by denying him a survivor’s pension, was
direct discrimination within the meaning of the equal treatment directive, 2000/78
(para 72). Interestingly, they so held despite the fact that the survivor and the
Commission had argued that this was indirect discrimination (see para 63).
29. As this case is not within the scope of EU law, we are not bound to follow
Maruko, but for the sake of consistency and coherence it is highly desirable that
we follow the same approach. With or without regulation 3(4), I have the greatest
difficulty in seeing how discriminating between a married and a civilly partnered
person can be anything other than direct discrimination on grounds of sexual
orientation. At present marriage is only available between a man and a woman and
civil partnership is only available between two people of the same sex. We can, I
think, leave aside that some people of homosexual orientation can and do get
married, while it may well be that some people of heterosexual orientation can and
do enter civil partnerships. Sexual relations are not a pre-condition of the validity
of either. The principal purpose of each institution is to provide a legal framework
within which loving, stable and committed adult relationships can flourish. I would
therefore regard the criterion of marriage or civil partnership as indissociable from
the sexual orientation of those who qualify to enter it. More importantly, there is
an exact correspondence between the advantage conferred and the disadvantage
imposed in allowing a double bed to the one and denying it to the other.
30. With the greatest respect to Lord Neuberger, I cannot accept that this
additional reason for the discrimination adds nothing. The important question, as
Lord Phillips emphasised in R (E) v Governing Body of JFS [2009] UKSC 15,
[2010] 2 AC 728, is what criterion was being employed by the service provider
when granting a service to one and denying it to another. The reason for adopting
that criterion is irrelevant. 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. They
would undoubtedly (as their revised policy makes clear) have denied a double bed
to a same sex couple who were married under some foreign law which allows it
(and would do once same sex marriage becomes law in the United Kingdom).
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31. The matter can be tested by imagining a different additional criterion. What
if hoteliers limited their double-bedded rooms to married couples over the age of
30? They would not only be discriminating against all unmarried people, which is
permitted unless it is indirectly discriminatory against a person with some
protected characteristic. They would also be discriminating against a married
person who is under the age of 30. That would in my view clearly be direct
discrimination on grounds of age. There would be an exact correspondence
between the protected characteristic of age and the criterion used for the difference
in treatment.
32. Furthermore, although this is a small point, if this is not direct
discrimination, it is much harder to bring it within the definition of indirect
discrimination in the 2007 Regulations than is a marriage criterion alone. The
criterion is not simply that “you are unmarried” but also “you are in a civil
partnership”. Most people would not regard that as a criterion which would be
applied to people irrespective of their sexual orientation: it is specific to those of
homosexual orientation.
Indirect discrimination
33. It is not disputed that, if this is not direct discrimination, it is indirect
discrimination within the meaning of regulation 3(3). The policy of letting doublebedded rooms only to married couples, while applied to heterosexual and
homosexual people alike, undoubtedly puts homosexual people as a group at a
serious disadvantage when compared with heterosexuals, as they cannot enter into
a status which Mr and Mrs Bull would regard as marriage. It undoubtedly put both
Mr Preddy and Mr Hall at a disadvantage. The question, therefore, is whether it
can reasonably be justified by reference to matters other than their sexual
orientation.
34. Mr and Mrs Bull argue that they should not be compelled to run their
business in a way which conflicts with their deeply held religious beliefs. They
should not be obliged to facilitate what they regard as sin by allowing unmarried
couples to share a bed. A fair balance should be struck between their right to
manifest their faith and the right of Mr Preddy and Mr Bull to obtain goods,
facilities and services without discrimination on grounds of their sexual
orientation.
35. This question was not addressed in the Court of Appeal, as they had
concluded that this was direct discrimination. It was addressed by the judge, who
confessed that he did not find regulation 3(3)(d) easy to interpret. Worded as it is, I
understand what he means. Mr and Mrs Bull seek to justify their policy by
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reference to a deeply held belief that sexual intercourse outside marriage is sinful.
Can that belief be a “matter other than [their] sexual orientation”? I am prepared
to accept that it can, not least because it covers all kinds of unmarried couple. But
it would be hard to find that a belief that sexual intercourse between civil partners
was sinful was a “matter other than [their] sexual orientation”, because by
definition such sexual intercourse has to be between persons of the same sex.
36. Thus, even on the wording of the regulation itself, it is difficult to see how
discriminating in this way against a same sex couple in a civil partnership could
ever be justified. But it goes further than that. Parliament has created the institution
of civil partnership in order that same sex partners can enjoy 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.
37. Added to these considerations are those which weighed with the judge. 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
discrimination legislation. We do not normally allow people to behave in a way
which the law prohibits because they disagree with the law. But to allow
discrimination against persons of homosexual orientation (or indeed of
heterosexual orientation) because of a belief, however sincerely held, and however
based on the biblical text, would be to do just that.
38. Regard can also be had to the purpose of the Regulations, not as an aid to
construction but in order to understand the problems they were meant to solve and
how they proposed to solve them. The purpose was to secure that people of
homosexual orientation were treated equally with people of heterosexual
orientation by those in the business of supplying goods, facilities and services.
Parliament was very well aware that there were deeply held religious objections to
what was being proposed and careful consideration had been given to how best to
accommodate these within the overall purpose. For the reasons explained in the
Explanatory Memorandum to the Regulations, Parliament did not insert a
conscientious objection clause for the protection of individuals who held such
beliefs. Instead, it provided, in regulation 14, a carefully tailored exemption for
religious organisations and ministers of religion from the prohibition of both direct
and indirect discrimination on grounds of sexual orientation. This strongly
suggests that the purpose of the Regulations was to go no further than this in
catering for religious objections.
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39. Mr and Mrs Bull are, of course, free to manifest their religion in many other
ways. They do this by the symbolism of their stationery and various decorative
items in the hotel, by the provision of bibles and gospel tracts, and by the use of
their premises by local churches. They do not, of course, discriminate against nonbelievers or adherents of other faiths, for that would be just as unlawful under the
Equality Act 2006 (and now the Equality Act 2010) as is discriminating against
homosexuals under the 2007 Regulations. They are also free to continue to deny
double-bedded rooms to same sex and unmarried couples, provided that they also
deny them to married couples.
40. Before leaving this topic, it is worth noting that the Equality Act 2010 uses
a different formulation. A provision, criterion or practice is indirectly
discriminatory if the person who applies it “cannot show it to be a proportionate
means of achieving a legitimate aim”. This is now a much more familiar
formulation and avoids the linguistic difficulty referred to in paragraph 35 above.
But for the reasons given earlier, it is unlikely in this context to lead to a different
result.
Does the Human Rights Act make a difference?
41. Under article 9 of the European Convention on Human Rights, Mr and Mrs
Bull have the right, not only to hold the religious beliefs which they hold, but also
to manifest them in “worship, teaching, practice and observance”. The courts
below held that their policy was a manifestation of their religious beliefs, and that
has not been challenged in this appeal. The European Court of Human Rights has
repeatedly stressed the importance of these rights in a democratic society. For
example in Bayatyan v Armenia (2011) 54 EHRR 467, 494, the Grand Chamber
said this:
“The Court reiterates that, as enshrined in article 9, freedom of
thought, conscience and religion is one of the foundations of a
‘democratic society’ within the meaning of the Convention. This
freedom is, in its religious dimension, one of the most vital elements
that go to make up the identity of believers and their conception of
life, but it is also a precious asset for atheists, agnostics, sceptics and
the unconcerned. The pluralism indissociable from a democratic
society, which has been dearly won over the centuries, depends on it.
That freedom entails, inter alia, freedom to hold or not to hold
religious beliefs and to practise or not to practise a religion.”
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Under article 9(2), the freedom to manifest their religion can be subject only to
“such limitations as are prescribed by law and are necessary in a democratic
society . . . for the protection of the rights and freedoms of others”.
42. I have held above that to deny Mr Preddy and Mr Hall a double-bedded
room constituted unlawful discrimination within the meaning of regulations 3(1)
and 4 of the Regulations. But if such a finding were to be incompatible with the
Convention rights of Mr and Mrs Bull, the court would be obliged by section 3(1)
of the Human Rights Act 1998, so far as possible, to read and give effect to the
Regulations in a way which is compatible with their rights. Mr O’Neill was
agnostic as to the solution he preferred. It might be done, for example, by holding
that what would otherwise be direct discrimination was indirect discrimination and
justified. Or it might be done simply by ignoring the Regulation insofar as it
produced an incompatible result (as the judge wrongly thought he was unable to
do); but of course this solution would no longer be possible in respect of
discrimination taking place after the Equality Act 2010 came into force, because
the courts cannot ignore incompatible primary legislation.
43. However, we do not come to remedy until we have decided whether there is
an incompatibility. Mr O’Neill understandably put the human rights dimension at
the forefront of his submissions. He emphasised that it was the state which had
placed limitations, in the shape of the Regulations, on the right of Mr and Mrs Bull
to manifest their religion by conducting their business in accordance with their
religious beliefs; whereas it was Mr and Mrs Bull, private citizens, who had
arguably interfered with the right of Mr Preddy and Mr Hall to enjoy respect for
their private lives without discrimination on the ground of their sexual orientation.
The state had not interfered with that right. In order to engage the state’s
responsibility, it would be necessary to erect a positive obligation to protect them
from interferences by private citizens.
44. One answer to that is that the state has already assumed such a
responsibility, by enacting the Regulations. Another, and simpler, answer is that
the “rights of others” for the purpose of article 9(2) (and indeed the other qualified
rights in the Convention) are not limited to their Convention rights but include
their rights under the ordinary law. The ordinary law gives Mr Preddy and Mr Bull
the right not to be unlawfully discriminated against. It follows that, for the purpose
of article 9(2), the limitation is “in accordance with the law” and pursues one of
the legitimate aims there listed.
45. The question, therefore, is whether it is “necessary in a democratic society”,
in other words whether there is a “reasonable relationship of proportionality
between the means employed and the aim sought to be achieved” (see, for
example, Francesco Sessa v Italy, App No 28790/08, Judgment of 3 April 2012,
Page 14
para 38). Mr O’Neill makes an eloquent plea for “reasonable accommodation”
between the two competing interests. The mutual duty of reasonable
accommodation unless this causes undue hardship originated in the United States
and found its way into the Canadian Human Rights Act 1985. It can of course be
found in our own disability discrimination law (see E Howard, “Reasonable
Accommodation of Religion and Other Discrimination Grounds in EU Law”
(2013) 38 EL Rev 360).
46. In Francesco Sessa v Italy, a Jewish lawyer complained that the refusal to
adjourn his case to a date which did not coincide with the Jewish holidays of Yom
Kippur and Sukkot was an interference with his right to manifest his religion. His
complaint was dismissed by a majority of 4 to 3. A powerful minority pointed out
that, for a measure to be proportionate, the authority must choose the means which
is least restrictive of rights and freedoms. Thus, seeking a reasonable
accommodation may, in some circumstances, constitute a less restrictive means of
achieving the aim pursued. Mr Sessa had given the Italian court ample notice of
the problem and reorganising the lists to accommodate him would cause minimal
disruption to the administration of justice – “a small price to be paid in order to
ensure respect for freedom of religion in a multi-cultural society” (para 13).
47. I am more than ready to accept that the scope for reasonable
accommodation is part of the proportionality assessment, at least in some cases.
This is reinforced by the decision in Eweida v United Kingdom (2013) 57 EHRR
213, where the Strasbourg court abandoned its previous stance that there was no
interference with an employee’s right to manifest her religion if it could be
avoided by changing jobs. Rather, that possibility was to be taken into account in
the overall proportionality assessment, which must therefore consider the extent to
which it is reasonable to expect the employer to accommodate the employee’s
right.
48. Our attention has been drawn to two examples of this concept in operation
in the British Columbia Human Rights Tribunal. In Smith and Chymyshyn v
Knights of Columbus and others 2005 BCHRT 544, a lesbian couple had hired a
hall owned by the Roman Catholic Church and let out on its behalf by the Knights
in order to hold a reception after their marriage. The hall was available for public
hire and they did not know of its connections with the Church. The letting was
cancelled when the Knights learned of their purpose. The Tribunal accepted that
the Knights could not be compelled to act in a manner contrary to their core belief
that same sex marriages were wrong, but they had nevertheless failed in their duty
of reasonable accommodation. They did not consider the effect their actions would
have on the couple, did not think of meeting them to explain the situation and
apologize, or offer to reimburse them for any expenses they had incurred or to help
find another solution. In effect, they did not appreciate the affront to the couple’s
human dignity and do their best to soften the blow.
Page 15
49. In Eadie and Thomas v Riverbend Bed and Breakfast and others (No 2)
2012 BCHRT 247, a gay couple had reserved a room in bed and breakfast
accommodation offered by a Christian couple in their own home, but when the
husband learned that the couple were gay, the booking was cancelled. Once again,
the Tribunal held that there had been a failure in the duty of reasonable
accommodation, in the offensive manner of the cancellation and the failure to
explore alternatives. Interestingly, the Tribunal considered this a stronger case than
Knights, because the Knights were operating a church hall used for church
purposes, whereas Riverbend had chosen to operate an ordinary commercial
business, albeit from their own home.
50. We cannot place too much weight on these cases, decided upon under
different legislation and in a different constitutional context. To the extent that
they suggest that both the Knights and Riverbend were entitled to cancel the
booking, provided that they did so in a way which respected the fundamental
dignity rights of the couples concerned, they provide some comfort to Mr and Mrs
Bull. Unlike Riverbend, Mr and Mrs Bull had made no secret of their policy,
although Mr Preddy was not aware of it when making the booking. They would
have been prepared to let Mr Preddy and Mr Hall have a twin bedded room, but
there is no evidence that these alternatives were discussed at the time. The
conversation with Mr Quinn was upsetting but not demeaning. The deposit was
refunded almost immediately and a without prejudice offer to reimburse the
additional expenditure was made later.
51. Nevertheless, Mr and Mrs Bull cannot get round the fact that United
Kingdom law prohibits them from doing as they did. I have already held that, if
justification is possible, the denial of a double bedded room cannot be justified
under regulation 3(3)(d). My reasons for doing so are equally relevant to the
Convention question of whether the limitation on the right of Mr and Mrs Bull to
manifest their religion was a proportionate means of achieving a legitimate aim.
The legitimate aim was the protection of the rights and freedoms of Mr Preddy and
Mr Hall. Whether that could have been done at less cost to the religious rights of
Mr and Mrs Bull by offering them a twin bedded room simply does not arise in
this case. But I would find it very hard to accept that it could.
52. Sexual orientation is a core component of a person’s identity which requires
fulfilment through relationships with others of the same orientation. As Justice
Sachs of the South African Constitutional Court movingly put it in National
Coalition for Gay and Lesbian Equality v Minister of Justice, 1999 (1) SA 6, para
117:
“While recognising the unique worth of each person, the
Constitution does not presuppose that a holder of rights is an
Page 16
isolated, lonely and abstract figure possessing a disembodied and
socially disconnected self. It acknowledges that people live in their
bodies, their communities, their cultures, their places and their times.
The expression of sexuality requires a partner, real or imagined.”
53. Heterosexuals have known this about themselves and been able to fulfil
themselves in this way throughout history. Homosexuals have also known this
about themselves but were long denied the possibility of fulfilling themselves
through relationships with others. This was an affront to their dignity as human
beings which our law has now (some would say belatedly) recognised.
Homosexuals can enjoy the same freedom and the same relationships as any
others. But we should not underestimate the continuing legacy of those centuries
of discrimination, persecution even, which is still going on in many parts of the
world. It is no doubt for that reason that Strasbourg requires “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.
54. There is no question of (as Rafferty LJ put it) replacing “legal oppression of
one community (homosexual couples) with legal oppression of another (those
sharing the defendants’ beliefs)” (para 56). If Mr Preddy and Mr Hall ran a hotel
which denied a double room to Mr and Mrs Bull, whether on the ground of their
Christian beliefs or on the ground of their sexual orientation, they would find
themselves in the same situation that Mr and Mrs Bull find themselves today.
55. For all those reasons, I would dismiss this appeal. I understand that this is
the unanimous decision of the Court. However, three of us consider (albeit for
rather different reasons) that it was direct discrimination, between persons who are
married and persons who are in a civil partnership, and thus on grounds of sexual
orientation, whereas two of us consider (again for rather different reasons) that it
was indirect discrimination on grounds of sexual orientation. We all agree that, if it
was indirect discrimination, it could not be justified.
LORD KERR
56. In my view, the material parts of regulation 3 are these:
“(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
Page 17
favourably than he treats or would treat others (in cases where there
is no material difference in the relevant circumstances)…
…
(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.”
57. Applied to the circumstances of this case, the question posed by regulation
3(1) is did Mr and Mrs Bull treat Mr Preddy and Mr Hall less favourably, on
grounds of their sexual orientation, than they would have treated others when there
is no material difference in their respective positions. Mr Preddy and Mr Hall are
civil partners. By virtue of regulation 3(4) they are to be treated as being not
materially different from a married couple.
58. A married couple would have been permitted by Mr and Mrs Bull to occupy
a double bedded room in their hotel. Mr Preddy and Mr Hall (who must for the
purposes of regulation 3 be treated as if they were a married couple) were refused
such a room. There can be no dispute that they were treated less favourably. Was
this on the grounds of their sexual orientation? In my view, it was.
59. This is not a question of regulation 3(4) transforming what was indirect
discrimination into direct discrimination. In concrete terms the effect of regulation
3(4) in the present case is that when Mr Preddy and Mr Hall arrived at Mr and Mrs
Bull’s hotel, their situation was the legal equivalent of that of a married couple.
By virtue of that paragraph of the regulation, they could not be distinguished, as a
matter of law, from a couple who were married. The fact that this applies both in
the direct and indirect discrimination contexts does not derogate from the impact
that the provision has on the operation of regulation 3(1). There is no material
difference between Mr Preddy and Mr Hall and a married couple. The
circumstance that they are not married in fact is to be ignored. It is of no
relevance.
60. Mr and Mrs Bull may not, therefore, legally assert that they treated Mr
Preddy and Mr Hall differently because they were not married for, in law, they are
to be regarded as the same as a married couple. On that account the only remaining
basis on which they were treated less favourably was their sexual orientation. As
Lord Toulson has said, after regulation 3(4) is applied, the only differential
between a married couple and Mr Preddy and Mr Hall is that the latter were of the
Page 18
same gender. And, although no express finding to this effect was made by the trial
judge, it seems inevitable that if Mr Preddy and Mr Hall hailed from a jurisdiction
where same sex marriage was legally recognised and if they had been legally
married, they would have met with the same resistance to their sharing a double
bedded room. The refusal by the hotel to allow them to have this accommodation
was rooted in religious conviction that marriage was only legitimate if contracted
between a man and a woman. This was a state which Mr Preddy and Mr Hall, by
reason of their sexual orientation, could not aspire to together.
61. Their sexual orientation may not have been the factor operating in the
minds of Mr and Mrs Bull, or even that of Mr Quinn, but that is irrelevant. As
Lord Phillips said in R (E) v Governing Body of JFS [2010] 2 AC 728 para 20,
“whether there has been discrimination on the ground of sex or race depends upon
whether sex or race was the criterion applied [in James v Eastleigh Borough
Council [1990] 2 AC 751] as the basis for discrimination. The motive for
discriminating according to that criterion is not relevant.” Mr and Mrs Bull cannot
avoid the charge of discrimination on the ground of sexual orientation by saying it
was not their intention to treat Mr Preddy and Mr Hall less favourably because
they were gay men. It is because they are gay men (and, moreover, gay men who
must in law be treated as if they were married but who cannot together enter the
married state which Mr and Mrs Bull consider is the only acceptable form of
marriage) that they were in fact treated less favourably.
62. When one poses the question, what caused the unfavourable treatment of
Mr Hall and Mr Preddy, against the backdrop that they are to be regarded as a
married couple, the only answer is that they were discriminated against because
they were homosexual. For that reason they were the victims of direct
discrimination. Had it not been for regulation 3(4), the discrimination in this case
would have been indirect. But for its impact on regulation 3(1) I would have
agreed with Lord Neuberger and Lord Hughes that this was a case of indirect
discrimination.
63. I agree with all that Lady Hale has had to say on the subject of indirect
discrimination.
LORD TOULSON
64. The court is divided about whether this is a case of discrimination under
regulation 3(1) of the Equality Act (Sexual Orientation) Regulations 2007 (direct
discrimination). In my view it is.
Page 19
65. Mr and Mrs Bull treated Mr Preddy and Mr Hall, who were civil partners,
“less favourably than [they] would treat others”, namely married heterosexuals.
This is clear not only from their printed literature, which stated that their policy
was to let double accommodation to “heterosexual married couples only”, but from
Mr Quinn’s response when told by Mr Preddy that he and Mr Hall were civil
partners. Lord Neuberger has said that the word “heterosexual” added nothing as a
matter of logic, but it served to emphasise that Mr and Mrs Bull would not let a
double room to a married couple if they were homosexual (as might be so in the
case of foreign visitors). Same sex couples were therefore explicitly excluded from
renting a double bedroom.
66. The disputed question is whether as a matter of causation Mr and Mrs
Bull’s less favourable treatment of Mr Preddy and Mr Hall was “on grounds of”
their sexual orientation. Mr and Mrs Bull have at all times denied this. They say,
firstly, that they did not refuse to let Mr Preddy and Mr Hall have a double room
because of their sexual orientation but because they were not married (marriage
being restricted to persons of opposite sex according to mainstream Christian
teaching and according to English law, as it has been until now, although this is
due to change as a result of section 1 of the Marriage (Same Sex Couples) Act
2013). They add, secondly, that they would equally have refused to let a double
room to a heterosexual unmarried couple. This, they say, shows that the refusal of
a double bedroom to Mr Preddy and Mr Hall had nothing to do with their sexual
orientation.
67. The answer to the first point is given by Lady Hale at para 29. To treat civil
partners differently from married persons on the ground that they are not married
is to discriminate on grounds of their sexual orientation, no less than it would be to
treat a same sex married couple differently from an opposite sex married couple,
for sexual orientation is the differential factor – civil partnership is for homosexual
couples what marriage is for heterosexual couples. One cannot separate the sexual
orientation of Mr Preddy and Mr Hall from the resulting legal branding of their
relationship, and to treat them differently from a married couple amounts to
treating them differently because their relationship is homosexual and not
heterosexual.
68. As to the second point, it is true that in the case of unmarried heterosexuals
it is not their sexual orientation which causes Mr and Mrs Bull to treat them
differently from married heterosexuals, but the fact that the couple have not chosen
to marry. But it is a non sequitur to reason from this that the differential treatment
of persons in a civil partnership from that of married heterosexuals (or, similarly,
of same sex married couples from opposite sex married couples) is not due to their
sexual orientation, when that is the very factor which separates them. Lord
Neuberger considers that on proper analysis the fact that Mr Preddy and Mr Hall
Page 20
were civil partners makes no difference; all that mattered was that they were not
married. I am of the opposite opinion that it makes every difference.
69. At the risk of repetition, I go back to my starting point, from which
everything else flows. Since Mr Preddy and Mr Hall are civil partners, it is fair
and reasonable that they should identify married heterosexuals as the relevant
“others” for the purposes of regulation 3(1). If I am right about that, the question is
whether their sexual orientation was the decisive criterion which led to their
different treatment. I have explained my reasons for concluding that it was.
70. The correctness of taking that starting point is reinforced by regulation 3(4).
In considering whether there has been impermissible discrimination, either direct
or indirect, the appropriate comparison is with others whose circumstances are not
materially different. In saying this I am restating the point made by Lord Kerr in
the second paragraph of his judgment.
71. The decision of the House of Lords in James v Eastleigh Borough Council
[1990] 2 AC 751, about gender equality, assists rather than hinders Mr Preddy and
Mr Hall. Lord Bridge, with whom Lord Ackner and Lord Goff agreed, emphasised
that under the relevant statutory provision the comparison which was required to
be made was between persons whose relevant circumstances were the same. That
is also a feature of the regulations with which we are concerned, by virtue of the
words “in cases where there is no material difference in the relevant
circumstances”. There is no material difference in circumstance between civil
partners and married couples because the regulation so provides. Mr and Mrs Bull
therefore cannot be heard to assert that it was a material circumstance that Mr
Preddy and Mr Hall were unmarried. Lord Bridge also held that the motive of the
defendants was irrelevant. The question was objective: would the claimant in that
case have received the same treatment as his wife but for his sex? Transposed to
this case the question becomes: would the claimants have received the same
treatment as married heterosexuals but for their sexual orientation?
72. On the questions about regulation 3(3) and article 9 there is no
disagreement among the members of the court and I have nothing to add.
LORD NEUBERGER
73. I agree with Lady Hale that this appeal should be dismissed. However, I
reach this conclusion on the ground that Mr and Mrs Bull were guilty of
unjustified indirect discrimination contrary to regulation 3(3) of the 2007
Page 21
Regulations, rather than (unjustifiable) direct discrimination contrary to regulation
3(1) of those Regulations.
74. For the reasons that Lady Hale gives in paras 17-24 above, if this case were
“solely about discrimination against the unmarried”, Mr and Mrs Bull would be
guilty of indirect, rather than direct, discrimination. As she explains, this is
because, in order for discrimination to be direct, there must be an exact
correspondence between the criterion and the protected characteristic – see James v
Eastleigh Borough Council [1990] 2 AC 751, which is consistent with the
approach adopted by the CJEU, as well summarised in the passage quoted from the
Advocate General’s opinion in Bressol v Gouvernement de la Commaunité
Française (Case C-73/08) [2010] 3 CMLR 559, para 56.
75. However, I am unable to join Lady Hale in accepting the respondents’
argument that a different conclusion is warranted simply because Mr Preddy and
Mr Hall had entered into a civil partnership.
76. I cannot see why the addition of the fact that there was a civil partnership
relationship between the two men alters Lady Hale’s conclusion in paras 23-24
above that, had Mr Preddy and Mr Hall not been in a civil partnership, the
discrimination would have been indirect.
77. Lord Toulson says that to treat Mr Preddy and Mr Hall “differently from a
married couple amounts to treating them differently because their relationship is
homosexual and not heterosexual”. That may be true as far as it goes, but (i) it is
only a partial description of the discrimination being practised in this case and (ii)
the existence of a civil partnership adds nothing. As to (i), one has to take the
discrimination as it has been found to be: Mr and Mrs Bull would have treated an
unmarried heterosexual couple in precisely the same way that they treated Mr
Preddy and Mr Hall. As to (ii), I do not see why, on Lord Toulson’s analysis, the
fact that Mr Preddy and Mr Hall were in a civil partnership makes any difference.
Thus, in my view, there is no getting away from the fact that, on the basis of the
well-established rule identified by Lady Hale this is a case of indirect
discrimination, unless there are any other good reasons to the contrary.
78. For the reasons Lady Hale gives in para 27 above, regulation 3(4) does not
assist the respondents’ argument. It is merely concerned to establish that, for the
purpose of establishing whether there has been direct or indirect discrimination, it
must be assumed that there is no “material difference” between a person in a civil
partnership and a married person. Not only is that what regulation 3(4) says as a
matter of ordinary language, but it is hard to think that it has the effect argued for
by the respondents given that it is expressed to apply to both regulation 3(1) and
Page 22
regulation 3(3) – ie to both direct and indirect discrimination. The suggestion that
this interpretation of rule 3(4) is contrary to the purpose of the Regulations seems
to me, with respect, to be circular or self-fulfilling: it assumes that the purpose of
regulation 3 is to render discrimination in a case such as this direct, when that is
the very question at issue. Having considered Lord Hughes’s analysis of the effect
of regulation 3(4), it is right to add that I agree with it.
79. Further, in so far as it is relied on to support the respondents’ case, I do not
see how Mr and Mrs Bull’s express restriction to “heterosexual married couples”
referred to in para 9 above helps (except as a possible basis for a crossexamination which sought to establish a different reason for the discrimination
from that which they alleged). It was entirely consistent with the discrimination
which Mr and Mrs Bull accepted that they practised, as explained to Mr Preddy
and Mr Hall by Mr Quinn – see para 10 above. The word “heterosexual” added
nothing as a matter of logic, and indeed could fairly be said to have been
necessary, because there are a number of jurisdictions (which will shortly include
the United Kingdom) where marriage is as open to homosexual couples as it is to
heterosexual couples. The Bulls were, on the judge’s finding, simply emphasising
that they only permitted couples who were married in the traditional sense.
80. It is true, as Lady Hale says in para 26 above, that Parliament’s purpose in
introducing civil partnerships was to enable homosexual couples to enjoy the same
rights as heterosexual couples. However, that is not, in my view, either as a matter
of logic or as a matter of policy, a reason for holding that the discrimination in this
case was direct, given that it would have been indirect if Mr Preddy and Mr Hall
had not been in a civil partnership. So far as logic is concerned, the existence of a
civil partnership does not undermine the points made in paras 17-24 above. As to
policy, the laudable aim of treating couples in a civil partnership the same as
married couples leaves unanswered the question which type of discrimination is
being practised in the present case. If it had been Parliament’s intention to change
the normal and well-established distinction between direct and indirect
discrimination where a civil partnership was involved, one would have expected to
see the intention spelt out in the Civil Partnership Act.
81. While I see how the decision in Maruko (Case C-267/06) [2008] 2 CMLR
914, para 74, as discussed in paras 28-29 above, can be said to provide some
assistance to the respondents’ case, I do not find it very persuasive. It is true that
the Grand Chamber found that there had been direct discrimination in that case,
but it is, at best, of very limited assistance for a number of reasons: (i) the finding
was an unreasoned assertion, (ii) the Grand Chamber seems simply to have
contrasted the survivor of a homosexual partnership with his heterosexual
equivalent, and, if that was the correct assessment of the discrimination, it would
indeed have been direct, (iii) the Grand Chamber’s conclusion was inconsistent
with the case advanced by the successful claimant and the Commission, (iv) the
Page 23
Advocate General, in a fully reasoned analysis, had held that the discrimination
was indirect, (v) the decision of the Grand Chamber on this point is very hard to
reconcile with the well established CJEU and domestic jurisprudence – see the
cases cited in paras 18-24 above, and (vi) we are here concerned with domestic
legislation, and not with legislation based on an EU directive or regulation.
82. It is perfectly true that there is “an exact correspondence between the
advantage conferred and the disadvantage imposed in allowing a double bed to [a
married couple] and denying it to [a couple in a civil partnership]”, as Lady Hale
says in para 29 above. However, that does not alter the fact that the wellestablished requirements of direct discrimination as explained in paras 17-24
above are not satisfied in this case.
83. I do not accept that, on the facts as found by the judge, it can be said that
Mr and Mrs Bull operated a policy which was “specific to those of homosexual
orientation”. They said that their policy was that only traditionally married couples
could share a bed, and that the exclusion of unmarried couples applied equally to
homosexuals and heterosexuals. It would have been quite permissible for the judge
to have concluded, on the basis of a cross-examination to that end, that their policy
was, in truth, directly discriminatory against homosexual couples, because, for
instance, they did not enforce their alleged rule against unmarried heterosexual
couples, but no cross-examination or argument was raised to support such a
contention.
84. Finally, I consider that it is important to keep the law in this area, as in
almost any other area, clear and consistent. However much sympathy one may
have with the notion that the discrimination practised by Mr and Mrs Bull “ought
to be” or “feels like” direct discrimination, it is important for judges, perhaps
particularly in this court, to bear in mind that potential and alleged discriminators
and victims, as well as their advisers, know where they stand. Our domestic law is
currently clear about the difference between direct and indirect discrimination, and
it is well summarised by Lady Hale in paras 17-24 above. I believe that we should
avoid reaching a decision which risks blurring that clarity.
85. While I differ from Lady Hale on the issue of direct discrimination, I
nonetheless agree with her ultimate conclusion that this appeal should be
dismissed. That is because, in my view, Mr and Mrs Bull fail in their attempt to
justify the indirect discrimination or to rely on the Human Rights Act, for the
reasons given by Lady Hale respectively in paras 33-39 and 41-53 above, to which
I cannot usefully add anything.
Page 24
LORD HUGHES
86. The regulation makes, as do other statutory provisions in the field of
discrimination, a clear distinction between direct discrimination (regulation 3(1)
and indirect discrimination (regulation 3(3)). Both are unlawful. Indirect
discrimination may often be just as damaging as direct discrimination; indeed it
sometimes has the added feature that it is insidious, although not in the present
case.
87. Like Lord Neuberger, I entirely agree with Lady Hale’s very clear judgment
except that this was, as it seems to me, a case of indirect discrimination which
cannot be justified, rather than of direct discrimination. I agree with Lord
Neuberger’s analysis and add only a few words of my own.
88. As I see it, the argument for saying that the present case is one of direct
discrimination runs like this:
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.
89. As it seems to me, the flaw in this comes at step (iv). It concentrates on the
characteristics of these claimants rather than on the defendants’ reasons for
treating them as they did.
90. The claimants, in a civil partnership, are a subset of the unmarried; let us
say subset (a). So also would they have been if they had been members of two
other subsets of the unmarried:
Page 25
b) a same sex couple not in a civil partnership; or
c) a different sex unmarried couple.
91. The defendants were found to treat all three subsets the same. One cannot
say that their less favourable treatment is on different grounds for each subset. It
appears to be agreed that the less favourable treatment for subset (c) is on grounds
of lack of marriage. So far as I can see, it is further agreed that the less favourable
treatment for subset (b) is also on grounds of lack of marriage, and certainly that is
how I see it. I am unable to see that one can legitimately say that when it comes to
(a) it becomes less favourable treatment on grounds of sexual orientation. The
reality is that it is on grounds of being unmarried for all of them.
92. I entirely agree that regulation 3(4) is part of a general legislative scheme to
treat civil partnership as the equivalent of marriage for many purposes, and that the
public has an interest in stable publicly-committed unions of both kinds. But that
does not help in answering the question which form of discrimination is under
consideration in the present case. It is still necessary to ask whether the claimants
were treated less favourably than married people ‘on grounds of’ sexual
orientation.
93. Because, however, being married is a condition which same sex couples
cannot fulfil, the practice of the defendants amounted, in the case of both subsets
(a) and (b), to indirect discrimination on grounds of sexual orientation within
regulation 3(3)(b) and (c). For the reasons given by Lady Hale, it cannot be
justified under regulation 3(3)(d). Nor, also for the reasons which she gives – and
assuming that section 3 of the Human Rights Act 1998 requires us to read
regulation 4(1) as subject to the qualification that its prohibition upon
discrimination does not, on the facts of any particular case, occasion a
disproportionate interference with the Convention rights of the defendants – can it
be saved by reliance on article 9.
Page 26
