Mr Black and Mr Morgan are same-sex partners who are not in a civil partnership. Mrs Wilkinson runs “The Swiss Bed and Breakfast” – providing two double rooms and one single room – at her home in Cookham, Berkshire. Mrs Wilkinson, a committed Christian, believes that the Bible is the word of God. Her policy in accepting bookings is as follows:
“Because I am a Christian, I believe that monogamous heterosexual marriage is the form of partnership uniquely intended for sexual relations between persons and that homosexual sexual relations (as opposed to homosexual orientation) and heterosexual sexual relations outside marriage are wrong. Therefore since I started the business, I have sought to restrict the sharing of the double rooms to heterosexual, preferably married couples” [para 3].
As we noted at the time, in October 2012 in the Slough County Court Ms Recorder Moulder ruled in Black & Morgan v Wilkinson  EW (Misc) CC that, by refusing the claimants a double room, Mrs Wilkinson had discriminated unlawfully against them in the provision of bed and breakfast facilities on grounds of their sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations 2007 (revoked with effect from 1 October 2010 by the Equality Act 2010 but not in relation to acts occurring before that date). Mrs Wilkinson appealed.
In Black & Anor v Wilkinson  EWCA Civ 820 the Court of Appeal (Dyson MR, Arden & McCombe LJJ) held unanimously:
- that Mrs Wilkinson’s house was a “boarding house or similar establishment” within the meaning of Regulation 4(2)(b);
- that the exception under Regulation 6(1) for “anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention” did not apply in the circumstances of the case;
- that the Recorder had been right to follow Bull & Bull v Hall & Preddy  EWCA Civ 83 (which was on rather similar facts) and hold that there had been unlawful direct discrimination on the ground of sexual orientation; but
- that even if the Recorder had been wrong to follow Preddy, there had been unjustified indirect discrimination against the claimants [per Dyson MR].
That said, however, the enthusiasm of the Master of the Rolls for a finding of direct discrimination was somewhat muted. He stated that if he were free to do so he would not have followed Preddy [para 23] – which is why he also dealt with the issue of indirect discrimination.
Arden LJ added that no issue arose regarding compatibility of the Regulations with the ECHR [para 61]; moreover:
“… there must be something in the circumstances of the appellant’s case which gives her an exception when there would normally be no such exception. Running bed and breakfast accommodation in the normal way will not do. There must be some specific facts which mean that in the appellant’s case the Regulations do not strike a fair balance between her right to manifest her religious belief and the rights of the appellants under articles 8 and 14. Moreover, in the case of the latter rights … convincing and weighty reasons are required to justify interference. This is consistent with the approach of Strasbourg jurisprudence to immutable characteristics such as race and sex. The requirement for convincing and weighty reasons affords added protection for a right” [para 67: emphasis added].
The Christian Institute, which paid for the appeal, greeted the judgment as giving “hope for Christian-owned bed & breakfasts that restrict double rooms to married couples only”, on the basis that the remarks of the Master of the Rolls on indirect discrimination “would open the door for other B&Bs to maintain a ‘married couples only’ policy for double rooms, if they can show the policy is justified”. But the Institute goes on to say that such cases “will depend on their particular facts”. (To which it might usefully have added “and such a policy will be extremely hard to justify” – but it didn’t.)
But possibly of more interest than the views of the Christian Institute is the issue of clashing rights. Dyson MR said that it was clearly established that,
“… as a matter of general principle, (i) the right of a homosexual not to suffer discrimination on the grounds of sexual orientation is an important human right (article 8 and 14), and (ii) the freedom to manifest one’s religion or belief under article 9(1) is also an important human right. The importance of the former has been stated many times. For example, in EB v France (2008) 47 EHRR 509, the ECtHR said at para 91: “where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within article 8….” … But the importance of the latter has also often been stated: see, for example, Kokkinakis v Greece (1993) 17 EHRR 397 at para 31 and Eweida [Eweida & Ors v United Kingdom  ECHR 37] at para 79 and 83 (last sentence). Neither is intrinsically more important than the other. Neither in principle trumps the other. But the weight to be accorded to each will depend on the particular circumstances of the case” [para 35: emphasis added].
Arden LJ, on the other hand, seems in the passage quoted earlier to be placing more emphasis on an implied hierarchy of rights under which race and sex must be given greater weight than, for example, religion and belief or freedom of association.
The necessary balancing exercise can be an extraordinarily difficult task. Lady Justice Arden’s instinct, however, strikes me as entirely reasonable. You can change your religion (and people often do so) but you certainly can’t change your race – or as the Archbishop of Canterbury put it in a recent interview with the Daily Telegraph, “When I went to the Holy Land last month, I discovered that I’ve got enough Jewish blood to have been picked up in Hitler’s Germany”. Nor, except by an extreme act of will, can you change your sexual orientation – if, indeed, you can do so at all.
Bull & Bull v Hall & Preddy has already been appealed to the Supreme Court and is to be heard on 9 October. According to the Christian Institute, Mrs Wilkinson has been also given leave to appeal to the SC; the assumption is that the two appeals will be heard together.