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A step away from the ECHR

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

Lord Reed gave a lecture at Inner Temple mid-November (a copy of which is unfortunately not yet available), which concerned the relationship between the common law and the European Convention on Human Rights (ECHR). The principle of that speech was to demonstrate the importance of the United Kingdom’s legislation and developed case law that provides a basis for the protection of rights before there is a need to apply or refer to the ECHR or Strasbourg. The recent decision of the United Kingdom Supreme Court (UKSC) in Bull v Hall and another [2013] UKSC 73 has provided an example of our common law protecting rights and the relationship of this decision with the ECHR. The decision, therefore demonstrates an example of rights being domestically protected, which is of particular significance should the UK ever withdraw from the ECHR.

As a note to this exploration, it is worthwhile clarifying that the case demonstrates an enforcement of rights against two private parties, rather than a party enforcing their rights against the state, the latter of which the Human Rights Act 1998 would facilitate for. Following the application of domestic law between the private parties, the ECHR then comes into light to determine whether the domestic legislative protection afforded is compatible with the ECHR.

The appellants in this case, Mr and Mrs Bull, ran a hotel (The Chymorvah House), which restricted the use of double-bedded rooms to married couples. The reason for this policy stemmed from their Christian beliefs, i.e. that of monogamous heterosexual marriage; “the only divinely ordained sexual relationship is that between a man and a woman within the bonds of matrimony.” Naturally, the appellants believed that allowing unmarried couples to use a double-bedded room would facilitate sex before marriage, which, in accordance with their beliefs, is sinful. The respondents, Mr Preddy and Mr Hall, are civil partners who planned a short break in Cornwall in September 2008. On this particular occasion, the respondents booked to stay at the appellants’ hotel.

The website of the appellants’ hotel 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.” The respondents, however, booked their double-bedded room via telephone, where this clause was not explained to them. Upon the respondents’ arrival at the hotel, they were informed that the double-bedded rooms were for married couples only. Although the respondents are civil partners, the appellants explained that they did not believe in civil partnerships and that marriage is between a man and a woman. Accordingly, the appellants informed the respondents that the respondents’ booking could not be honoured.

The respondents’ protection from discrimination of their sexual orientation came from the Equality Act (Sexual Orientation) Regulations 2007 (the provisions of which can now be seen in the Equality Act 2010). The provisions considered are as follows:

Discrimination on grounds of sexual orientation

3. (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).

(2) In paragraph (1) a reference to a person’s sexual orientation includes a reference to a sexual orientation which he is thought to have.

(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.

The basis of the appellants’ submissions were that they accepted that there was indirect discrimination present, ‘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.’ The test for determining direct or indirect discrimination, best understood, stems from the decision of James v Eastleigh Borough Council [1990] 3 WLR 55. There it was held that for direct discrimination to be found there should be an exact correspondence between the criterion and the protected characteristic. The explanatory note to the Regulations is helpful here:

Discrimination on grounds of sexual orientation is defined in regulation 3. Direct discrimination occurs where a person is treated less favourably than another on grounds of sexual orientation (regulation 3(1)). Indirect discrimination occurs where a provision, criterion or practice, which is applied generally, puts a person of a particular sexual orientation at a disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim (regulation 3(3)).

The UKSC unanimously applied the Regulations in favour of the respondents, albeit they were split on whether the facts demonstrated direct or indirect discrimination. Lady Hale, with whom Lord Kerr and Lord Toulson agreed, found direct discrimination. The thought behind this finding can be summed up in reference to Advocate General Jacobs’ test in Schnorbus v Lond Hessen (Case C-79/99) [2000] ECR I-10997 (which Lady Hale referred to): a marriage criterion is indissociable from sexual orientation, in that at present persons of heterosexual orientation can marry and persons of homosexual orientation cannot. Lady Hale therefore held:

They [Mr and Mrs Bull] were applying a criterion that their [the respondents’’] legal relationship was not that of one man and one woman, in other words a criterion indistinguishable from sexual orientation.

Ultimately, ‘sexual orientation was the differential factor’ (Lord Toulson). However, and as Lord Neuberger, with whom Lord Hughes agreed, found indirect discrimination, which nevertheless failed to be justified, to demonstrate a superior application of the Regulations to these particular facts. Whilst Lady Hale’s ‘difficulty in seeing how discriminating between a married and a civilly partnered person can be anything more than direct discrimination on grounds of sexual orientation’ can be appreciated, that difficulty does not warrant a blurring of the lines between the test for finding direct or indirect discrimination, particularly given the statutory justification applicable to the latter (Lord Neuberger at para 84). In summary, that the respondents were in a civil partnership ‘adds nothing’; ‘Mr and Mrs Bull would have treated an unmarried heterosexual couple in precisely the same way that they treated Mr Preddy and Mr Hall.’  

Nonetheless, even if the majority had found indirect discrimination, the appellants would have failed in their attempt to justify their policy based on their belief that sexual intercourse outside of marriage was sinful. Lady Hale succinctly held:

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.

By understanding the purpose of the Regulations, this part of Lady Hale’s decision demonstrates what was not to be intended through the provision of justifying indirect discrimination (Regulation 3(3)(d)). Yet, and as mentioned at the beginning of this article, that application of the Regulations found the appellants to be discriminatory in some manner, the question for the UKSC to then determine was whether this outcome was compatible with the ECHR and the appellants’ reliance upon their Article 9 freedom of religion. This, however, appeared to be a relatively simple consideration for Lady Hale, of whom all the Justices of the Supreme Court agreed with, for Article 9(2) of the ECHR provides the freedom of religion to 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.’ Given the continual persecution of homosexuals over previous years, and the recent, belated developments that have arisen to afford them the protection against discrimination, Lady Hale held that the court should ‘be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.’

The decision of Bull demonstrates the United Kingdom’s continued position at the frontier of protectors from discrimination and the upholders of rights. The UK has not only contributed significantly to the development of supranational treaties for the protection of human rights, but it is able to protect rights at home, as the Regulations demonstrate. Moreover, the UKSC, in particular Lord Neuberger and Lord Hughes’ judgments, have demonstrated clarity on the protection from discrimination that the Regulations provide. This is something that the protection of rights under the ECHR has struggled to maintain. Lord Sumption recently commented extra-judicially on the problem of the ‘ambiguity of political vocabulary’ applied by Strasbourg to sets of legal values which may differ from democracy to democracy. Inductively, the UKSC have demonstrated the ‘paradigm case of how the political process ought to work’: a thoroughly democratically formulated statutory protection from discrimination, applied proportionately and clearly by an independent judiciary. Examples such as this decision, if ever required, could demonstrate a reason for leaving the ECHR and formulating a UK Bill of Rights.

Watch out for tomorrow's article on legitimate forms of protest, in which discrimination will be considered.

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Tagged: Discrimination, Human Rights, International Law

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