Analysis | Court of Appeal upholds hotel gay discrimination ruling – Marina Wheeler
19 February 2012
Bull & Bull v Hall & Preddy  EWCA Civ 83 – Read judgment
On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.
For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful. To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).
Denying discrimination, it was argued on behalf of the couple that since their restriction was not directed towards sexual orientation but sexual practice, it did not amount to direct discrimination.
As against this it was argued that the restriction necessarily excluded homosexual couples in a civil partnership (such as Mr Hall and Mr Preddy) and so was a plain case of direct discrimination.
The case required the Court to construe the Equality Act (Sexual Orientation) Regulations 2007 (provisions which are now contained in the Equality Act 2010) and, if this construction led to a finding of discrimination whether this would be compatible with the European Convention on Human Rights (“ECHR”).
The court’s reasoning
In finding that there had been direct discrimination, the Court reasoned thus: a homosexual couple cannot comply with the restriction because each party is of the same sex and therefore cannot marry. The restriction is thus absolute in relation to homosexuals but not in relation to heterosexuals and it therefore discriminates against Mr Preddy and Hall because of their sexual orientation. Put another way, the criterion at the heart of the restriction that the couple should be married is necessarily linked to heterosexual orientation.
The Court stated that it was fortified in this by the fact that the legislature by means of the Sexual Orientation Regulations had recently considered and determined where the demarcation should be drawn by permitting exemptions in certain circumstances for religious organisations . Such exemptions did not however benefit Mr and Mrs Bull: the Regulations, in the view of the Court, reflected a clear decision that those who offer services, especially hoteliers, may not discriminate on grounds of sexual orientation.
Having found that the actions of Mr and Mrs Bull did constitute direct discrimination, the next issue was whether such a conclusion was compatible with the ECHR.
The Court had no trouble rejecting the argument that a finding of discrimination would breach Mr and Mrs Bull’s Article 8 right to respect for their private and family life. It found that, on the contrary, to uphold the prohibition against homosexual couples sharing double-bedded accommodation would be to breach that couple’s Article 8 rights.
Article 9, the right to freedom of thought, conscience and religion, was of course at the heart of the case:
(1) Everyone has the right to freedom of thought, conscience and religion: this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one’s beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
At first instance the Judge accepted that Mr and Mrs Bull held a belief that qualified for protection under Article 9 and that their running of the hotel along Christian principles was a manifestation of their religion (and belief). The key question was whether interference with that manifestation could be justified as a legitimate aim and whether the means of achieving it were appropriate and necessary.
In reaching its decision the Court relied on the dicta (statement said in passing) in Ladele v London Borough of Islington and another  1 WLR 955 and McFarlane v Relate Avon Ltd  IRLR 872 (both of which are currently before the European Court of Human Rights). It referred to Strasbourg case law, cited in Ladele suggesting that Article 9 “primarily protects the sphere of personal beliefs and religious creeds and does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief”: C v United Kingdom App 10358/83.
The Court found that the limitations which the Regulations placed on the Bulls’ manifestation of their religious beliefs were necessary in a democratic society for the protection of the rights and freedoms of others: the Regulations aimed to ensure in a commercial context equality for all regardless of sexual orientation and that civil partnerships were treated as marriage for the purposes of the provision of goods and services. It concluded that the discrimination differed little from that in Ladele: Mr and Mrs Bull were able to manifest their beliefs in many ways outside the commercial sphere.
This decision, followed as it was by a High Court ruling that prayers could not lawfully be held in formal council session, has fuelled criticism that the domestic courts do not adequately safeguard the Article 9 rights of the Christian community. This proposition will soon be tested in Strasbourg in four eagerly awaited cases: Ladele and McFarlane (previously referred to) and: Eweida and Chaplin in which employees were prevented from wearing crucifixes to work.
Marina Wheeler is a barrister at 1 Crown Office Row
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