Thursday, 28 November 2013

B&B Owners and Sexual Orientation - The Final Chapter

The Supreme Court has issued its decision in the case of Bull v Hall [2013] UKSC 73 which involves a couple, Mr & Mrs Bull, who owned a B&B in Cornwall and who refused to provide a double bedded room to a Gay couple who were in a Civil Partnership.  They justified this on the basis that they only provided double bedded rooms to Heterosexual Married couples.  They were then successfully sued for breach of the Sexual Orientation Regulations 2007, which are now incorporated in the Equality Act 2010

The Bulls had originally lost their case in the Court of Appeal Bull v Hall [2012] EWCA Civ 83 which I blogged about HERE where they had been found to have engaged in Direct as Opposed to Indirect discrimination.  In the Supreme Court 3 all the Judges agreed that the Bulls had engaged in unlawful Discrimination but 3 held it was Direct Discrimination and 2 held it was Indirect Discrimination.   The decision by the Supreme Court also has the effect of overriding the decision of the Court of Appeal in Black v Wilkinson [2013] EWCA Civ 820 where a similar situation to that of the Bulls was considered by the Court of Appeal to be Indirect Discrimination.  The fact that so many eminent Judges can disagree on so fundamental a legal issue hardly inspires confidence in the legal drafting behind the Equality Act 2010

That said the decision by the Supreme Court was predictable and follows the logic of similar decisions in Canada  Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2),2012 BCHRT 247 and in the USA  Elane Photography v Vanessa Willock New Mexico Supreme Court August 22, 2013 and the decision re Lillian Ladelle in the European Court of Human Rights all of which I have previously blogged about.  Article 9 of the European Convention of Human Rights was here, as so often before, shown to be a toothless Human Right 

The summation of the present legal situation and the philosophy behind it was put by Lady Hale who did the lead judgment in the case

52.Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.

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.

The point I would ask is what sort of legal system or society needs to punish a couple who run a small B&B merely because they disagree with  the, now overwhelming, consensus ?  Why on earth can society not accommodate them, what ever happened to the idea of human freedom ?

Also as regards the fatuous comparison Lady Hale made in para 54 surely the point would be why the Preddy and Hall were denying the room to the Bulls ?  Lady Hale simply did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point

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