This judgment is being released to the parties and their legal advisers in accordance with the provisions of paragraph 2.1 of Practice Direction 40E. Until it is handed down it remains confidential and its contents should not be communicated to anyone else.
The Cases will be listed at 10.00 am on Tuesday 18 January 2011 when the judgment will be handed down. The parties having agreed the appropriate orders in each case there is no need for any attendance.
B e f o r e :
| MARTIN HALL and STEVE PREDDY
|- and -
|PETER BULL and HAZEL BULL
Crown Copyright ©
What is this case about?
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 hotel has 7 bedrooms for guests which are 3 doubles, a family room, two twin bedded rooms and one single.
Regulation 3(1) provides:-
For the purposes of these Regulations, a person ("A") discriminates against another ("B") if, on the 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) .
Regulation 3(3) in so far as it is relevant to this case provides:-
For the purpose 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
(d) which A cannot reasonably justify by reference to matters other than B's sexual orientation.
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.
It seems to me that this is a crucial part of the case.
a. the Regulations must be read and given effect in a way which is compatible with the European Convention rights.
b. if it is impossible to interpret them in a way which is compatible then the regulations still apply and I must apply them. A judge of the High Court could make a declaration of incompatibility but that luxury is not give to the County Court.
c. if I find that this is case of direct discrimination then the claimants are bound to succeed.
d. if I find that this is not direct discrimination but that it is prima facie indirect discrimination then the defendants can avoid liability if they (and the burden falls upon them) can reasonably justify (their practice) by reference to matters other than to B's sexual orientation. There is no similar "let out" for direct discrimination.
Are they in breach of the Regulation?
Are Regulations 3(1) and (4) incompatible with the European Convention?
Can the Regulations be read in a way that is compatible with the Convention?
"that the defendants applied the restriction, which is a provision, criterion or practice within the meaning of Regulation 3(3), and has applied it equally to persons not of B's sexual orientation".
They therefore accept that the case falls within Regulation 3(3(a).
(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)
I confess that I do not follow this argument. Regulation 3(4) says that there is no material difference between those who are married and those who are in a civil partnership. It seems to me that the restriction does put homosexuals in at a disadvantage when compared with married persons and for the purpose of 3(3)(b) there is no material difference between the two legal forms of relationship. It does not matter that it puts them in the same position as unmarried heterosexuals.
(a) a declaration that the defendants have unlawfully discriminated against them contrary to the Equality Act (Sexual Orientation) Regulations 2007, and
(b) Damages including damages for injury to feelings not exceeding £5000 and interest.
Permission to Appeal
a.the way in which I have interpreted the position of the defendants (see paragraphs 32 onwards),
b. the way in which I have interpreted and given effect to Regulation 3(4),
c. this decision does affect the human rights of the defendants to manifest their religion and forces them to act in a manner contrary to their deeply and genuinely held beliefs
d. there is little or no direct authority on the issues I have had to decide.