Second Christian B&B case headed for the Supreme Court
23 July 2013
Black and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.
The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull [2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court.
This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.
Issues
The background facts to this judgment and the decision in the county court are set out in our previous blog post here. The appeal raised five issues:
(i) was the B&B actually a ‘boarding house or similar establishment’, such that it was caught by the Equality Act (Sexual Orientation) Regulations 2007;
(ii) did the B&B, given the very homely nature of the service provided, fall within the exception in the Regulations covering service done for people as if they were members of the family;
(iii) was this really a case of direct discrimination;
(iv) if it was not direct discrimination, was Mrs Wilkinson’s policy of not allowing unmarried couples to share a bed indirect discrimination; and
(v) if it was indirect discrimination, was Mrs Wilkinson’s policy justified?
Ruling
The first two issues did not get very far. It was clear that Parliament intended B&Bs to be caught by the Regulations. Similarly, although the county court had found that Mrs Wilkinson provided a “personal and caring, even loving, service” to guests, this did not mean that they fell within the exception to the Regulations covering service provided to persons requiring special care and attention or situations in which persons are treated ‘as if they were members of the family’.
The Court of Appeal found the third question much more difficult. The appellant argued that she did not discriminate on the basis of sexual orientation at all, but rather sexual behaviour. She held to the mainstream Christian belief that the only right place for sexual activity is a marriage between one man and one woman, and had a policy of refusing a double bedroom to any unmarried couple. A similar argument had been run in the Preddy case and been rejected by the Court of Appeal. If this case could not be distinguished then that previous ruling would be binding on the Court. Lord Dyson MR expressed significant doubt about the Preddy decision:
In my view, Preddy 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. It was, however, a case of indirect discrimination because the defendants’ policy in that case put homosexual couples at a disadvantage compared with heterosexual couples on the ground of their sexual orientation. The former could not marry, whereas the latter could (which was the very reason given by the court in Preddy for holding that there was direct discrimination in that case).
However, he could not see any reason to distinguish the two cases so “reluctantly” concluded that Preddy was binding and held that there was unlawful direct discrimination.
The Court also held that there was indirect discrimination, for the reason above, and turned to consider the question of whether such discrimination could be justified. The appellant had argued that excluding gay couples from double rooms was a proportionate means of achieving a legitimate aim, namely exercising her right to manifest her religious beliefs (Article 9) and her right to respect for her private and family life (Article 8). However, the Court held that it was not proportionate (or, to put it the other way around, that requiring her to comply with the Regulations was a proportionate interference with her Article 8 and 9 rights), for the following reasons:
- Neither the freedom to manifest your religious beliefs nor the right not to suffer discrimination on grounds of sexual orientation is intrinsically more important than the other. Neither trumps the other. The weight to be accorded each depends on the particular circumstances of the case.
- In considering proportionality the court should give considerable weight to the fact that, following a public consultation, Parliament had already debated the correct balance between the competing rights and reached the conclusion that B&Bs should be caught by the Regulations. Although not conclusive, this was an important factor.
- In Eweida the European Court held that the fact a person can avoid a problem by changing their job or business does not mean there is no interference with their Article 9 rights, but the seriousness of the impact on a person is still relevant to proportionality. No evidence was put forward by the appellant that her business would suffer if she did not offer double bedrooms to anyone (which would have avoided the problem). The burden was on her to show that the restriction on her Article 8 and 9 rights caused her serious economic harm, and she had not discharged it.
Comment
It appears there would be a strange twist to this case following the passage of the Marriage (Same Sex Couples) Act 2013 last week. Now that gay couples can get married, it would seem on the above analysis that it is no longer directly or indirectly discriminatory to have a policy like Mrs Wilkinson’s and refuse double beds to all unmarried couples, whether opposite-sex or same-sex. Wouldn’t the position now be that a B&B or hotel owner would only fall foul of the law if they refused a double bed to a married same-sex couple where they would allow a married opposite-sex couple to share a bed?
More generally, the case shows up the difficulty in reconciling competing rights. In particular, it illustrates the problem of discrimination cases turning on whether an act can be analysed as direct (and therefore not justifiable) or indirect (and therefore potentially justifiable) discrimination, which can be quite an artificial or arcane exercise. Lady Hale gave a speech on this very problem of the ‘conflict of equalities’ on the same day this judgment was handed down, which is well worth reading as it canvasses many of the tricky issues that arise.
Finally, it does seem odd that the Court of Appeal held that Mrs Wilkinson’s desire to act in line with her deeply held religious beliefs and her conscience did not justify indirect discrimination, but suggested that if she had shown her business would not have been profitable if she took a different approach this could have justified it. Surely upholding the fundamental human right to freedom of religion should be given more weight in the balancing exercise than merely losing some money?
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The point about the BNP bloke, whose name I prefer not to speak or write, is that I would commit the actionable wrong of breach of contract rather than let him in my home. And if necessary see him in court.
I wish the outcome of Redfearn was as you say! The effect of the ECtHR and the legislation which as followed is that if your dismissal is unfair and it was because of your politics the two-year qualification period does not apply. I think the government should have bitten the bullet and made political opinions or membership or non-membership of any lawful organisation a protected characteristic (for employment purposes); and then forbidden employers to ask about it.
Will T and Simon: what you say is rational but not reasonable. People do feel offended and damaged about what happens in their own homes even though it does them no tangible harm. To say that the owners “live in their business” is threfore true but not exhaustive.
If I ran a B and B in my home I would refuse to take a booking from the leader of the BNP – and if he turned up (having for example adopted a high-pitched voice on the phone and given me his initial and not his full name) I would show him the door, breach of contract notwithstanding, and that is a civil wrong as is unlawful discrimination. If on the other hand he books a flight the airline must put up with him as must the other passengers, because it is not their home.
The Nick Griffin issue is beside the point as political opinion is not a protected characteristic under the Equality Act. See Redfearn v Serco for an attempt to argue that it was that failed – yes, there was the ECHR case *Redfearn v UK), but the legal change there is confined to employment, making dismissal due to political opinion, or party membership (don’t remember which off the top of my head) an automatically unfair reason.
“Wor Geordey an’ Bob Jonsin byeth lay i’ one bed,
Iv a little lodgjin hoose that’s doon the shore,
Before Bob had been an’ oor asleep, a kick frae Geordey’s fut
Myed him wakin up to roar instead o’ snore.”
If you’ve ‘larned yersel geordie’ enough to understand that, you’ll twig that historically it has always been the case that same sex ‘couples’ could share a bed, be it for reasons of economy or congestion in the “lodjin hoose”. It was never assumed that such an arrangement would give rise to such historically criminal activities as gross indecency or buggery (the latter, as I recall the law of the day, could apply to married couples!) as has been assumed in this case. All the plaintiffs had to do was to say they wanted to save money by sharing a double room.
Nowt ‘immoral’ in that …
Competing rights?
That homosexuality exists – this is confirmed by the law.
That God exists – this is not confirmed by the law.
Human Rights is a political construct which will favour one group over another depending on contemporary thinking. If this were not the case then the above case would not even be a case at all. Human rights are whatever we want them to be.
When considering the reconciliation of “competing rights”, the crucial thing to consider is not the holding of conflicting abstract ideas or desires, but what really has an effect upon people’s lives.
Allowing a couple to share a double bed in no way affects the lives of anyone who holds the opinion that that couple are doing something morally wrong. It makes absolutely no difference to a B&B owner’s life who is sharing that double bed. How could it? The B&B owner loses absolutely nothing in reality. Whoever may be sharing a double bed, the opinions and beliefs of the B&B owner can remain entirely unaffected, and there is no physical impact upon them.
Yet if any person or couple are denied equal access to any kind of goods or services, then that will obviously have a real impact upon their lives. A one-off incident may not appear serious, but if discrimination of this kind is allowed across the nation, then certain groups will suffer real hardship.
In this case, the B&B owners are simply fighting for the right to screw up other people’s lives, because, win or lose, the consequences will have no actual effect on themselves.
As a layman I ask, are not Paul Croft’s ‘salvery’ and ‘black’ examples of direct discrimination?
Lady Hale’s speech is well worth reading. The whole point is if you have two rights appearing to oppose each other how do you decide which if either prevails?
Your right to decide who does and who does not come into your own home has to be high up on the list if there is conflict. If I invite all my neighbours except the gay couple, or the black couple, or the Jewish couple, or the Muslim couple, to the barbecue in my background that’s unattractive – and the others might decide to leave early and not come next year – but howeve hurtful it is it cannot be actionable.
Obviously where it’s not a purely social relationship but there is a business element the goalposts move – if it’s merely a hotel they move all the way – but it is good that the SCUK decides how far.
That there is “a business element” is an understatement. It’s not that they let people in to their home, a B and B is a business (they just live in their business). The Equality Act won’t stand in the way of inviting who you want to your dinner parties.
Surely it is not right that someone can claim human rights protections for “their” right to practice their religion, when this “right” interferes with the rights and freedoms of others (e.g. of homosexuals). It would be totally wrong if this were the case. Historically slave-owners could then have claimed their “right” to own human beings is being interfered with if slavery were abolished (I am sure this argument was used at the time!); or if today a religious person and believed Black people were less than human (as outlined in the bible?) then their right to discriminate on grounds of race could potentially be upheld. Clearly this would be perverse.
The only way such so-called “human rights conflicts” can be resolved is if everyone claiming human rights implicitly signs up to a package which respects all human rights – period!
Interestingly this very issue was raised during the passage of the Marriage (Same Sex Couples) Bill when it was debated at length in the House of Lords. Lord Singh amongst others wanted a referendum. It was pointed out that the anti-racism legislation introduced by an earlier Labour government had no electoral mandate either, nor did the emancipation of Roman Catholics, but the law was changed to protect these minorities. The revealing reaction of the bill’s opponents indicated that their claims had little to do with sincere religious belief but rather more to do with personal prejudice – they rejected out of hand any suggestion that these other issues should have been put to the popular vote.
Minorities rights, as was pointed out by various Christian, Jewish, Humanist speakers, should not be determined by opinionated majorities but should be protected because it is right. The arguments in favour of legislating the common good/utilitarianism, what Hart I think called conventional morality, when it tolerates oppression is unacceptable. If one believes that majority opinion should hold sway, then presumably we would still tolerate the virulent anti-semitism of my (Christian) parents childhood and would never have passed the Race Relations Act/