Bull v. Hall and Preddy  UKSC 73 – read judgment here.
The recent confirmation by the Supreme Court that it was unlawful discrimination for Christian hotel owners to refuse a double-bedded room to a same-sex couple was of considerable interest as the latest in a string of high-profile cases involving religious belief and discrimination on the basis of sexual orientation (and the first such judgment involving the highest court in the land). We have already provided a summary of the facts and judgment here, and our post on the Court of Appeal ruling can be found here.
The case has been portrayed in some media as a clash between gay rights and religious freedom, with gay rights winning – see e.g. the Daily Mail’s headline: B&B owners’ right to bar gay couple crushed by ‘need to fight discrimination’. This is despite the best efforts of Lady Hale, who gave the main speech, to emphasise at paragraph 34 that this decision did not amount to replacing legal oppression of one community (homosexual couples) with legal oppression of another (Christians and others who shared the appellants’ beliefs about marriage), because the law equally prohibits a hotel keeper from refusing a particular room to a couple because they are heterosexual or because they have certain religious beliefs. However, moving beyond this simplistic portrayal of the issue at stake, there are several interesting legal points in the decision, which may raise more questions than it answered.
Proceed directly or indirectly to discriminate?
First, this judgment has unfortunately made the already unclear distinction between direct and indirect discrimination all the more confusing. UK equality legislation is drafted in quite a technical manner and if direct discrimination is found to have taken place there is no general defence of justification, whereas if the discrimination is indirect it can be justified. This leads to the courts and tribunals regularly tying themselves in knots to find that an action is indirect discrimination where they feel it was reasonable, even if it does not comfortably fit within that definition. That is a particular problem where, as in the Bull case, there are competing protected characteristics in play.
Ironically, Lady Hale herself noted this very issue in her Alison Weatherfield Memorial Lecture earlier this year (well worth a read) and referred to how unsatisfying the Supreme Court had found the current law when they had to apply it to the admission criteria of a Jewish school in the JFS case in 2009. Yet despite this, we now have a further judgment from the Supreme Court which involved a 3-2 split on whether the Bulls’ policy on double bedrooms amounted to direct discrimination.
On closer analysis the reasoning of the three Justices (Lady Hale, Lord Kerr and Lord Toulson) who held that it did amount to direct discrimination is not particularly convincing. It was based in large part on the assumption that a civil partnership is indistinguishable from marriage and therefore any distinction between the two is in effect to discriminate on the basis of sexual orientation. However, this is difficult to square with the recent passage of the Marriage (Same-Sex Couples) Act 2013. Parliament has now (and arguably has always) made it clear that marriage and civil partnerships are different institutions. Moreover, the appellants rightly pointed out that there is nothing currently to stop a gay person getting married to someone of the opposite sex or a heterosexual person entering a civil partnership with someone of the same sex. This argument does not really seem to have been engaged with; Lady Hale simply says “we can, I think, leave it aside” without properly explaining why.
By contrast, Lord Neuberger adopts a much simpler approach and held that this was not direct discrimination, partly because (as he explains at para 84) it is important to keep the law clear and consistent. Lord Hughes, who agreed, sets out the majority’s position in a straightforward set of logical steps and shows the flaw in it, at paras 88-91. Given these strong dissents, this is probably not the last case we will see on the difference between direct and indirect discrimination.
Second, there have been increasing calls over the past two or three years for a doctrine of ‘reasonable accommodation’ in cases involving religion and belief. Various interveners in the Eweida and others cases before the European Court of Human Rights earlier this year argued in favour of this approach, but the Strasbourg court did not make any comment on it either positively or negatively. However, in Bull v. Hall Lady Hale seems to have opened the door to this argument being run in UK courts, stating at para 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…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.
Third, the appellants accepted that their policy was indirect discrimination and all five Justices were agreed that it was not justified, even taking into account the effect of Article 9. However, only Lady Hale explained why (the other Justices simply agreed with her) and some of the reasons are interesting. One compelling reason was that “we do not normally allow people to behave in a way which the law prohibits because they disagree with the law” and Parliament had decided not to provide a general conscientious objection clause when it passed the relevant Equality Regulations (or, it could be added, in the Equality Act 2010 or Marriage Act 2013).
However, on a plain reading of Article 9(1) it seems to provide an absolute protection to freedom of conscience. Might there be scope for arguing in future cases (or in this one, if it is appealed to the ECtHR) that even where Parliament has not seen fit to expressly allow for conscientious objection such a provision needs to be read into equality legislation so as to be compliant with the Convention?
Another reason given by Lady Hale was that:
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.
This seems be be saying that because there is still significant discrimination and persecution against gay people in other countries, there should not be any exception for hotel keepers in the UK. But that is a rather unusual approach to the justification question in a domestic setting. It is more normal to focus on the balance of harm and interference caused to both parties on the particular facts of the case. In this specific case Mr Hall and Mr Preddy certainly found their treatment very hurtful to their feelings. However, the Bulls did offer to compensate them for any loss and it was accepted that the refusal to allow them a double-bedded room was not done in a demeaning manner.
In contrast, the Bulls have reportedly had to sell their hotel because of the effects of this litigation. Moreover, whilst it is tragically the case that LGBT people are treating appalling in many places, it is equally true that Christians who share the appellants’ beliefs are discriminated against and persecuted in most countries (indeed a recent study showed Christians are the most persecuted religious group in the world). The international argument could therefore cut both ways.
Postscript: that pesky European law again
Fourthly and finally, those who blame ‘Europe’ for any laws they do not like, and particularly for discrimination and equality law, would be well advised to read Lady Hale’s comment at paragraph 3 of her judgment. She notes that all EU law requires is a general framework for combating discrimination on grounds of sexual orientation (amongst other protected characteristics). The particular way in which discrimination is defined and any exceptions to discrimination law (or lack thereof) are purely a matter for each Member State. Thus the issues in this case are solely down to the details of domestic law, not European law.
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