Black and Morgan v Wilkinson (2013)

English Constitutional Law

Black and Morgan v Wilkinson
‘Breakfast in Bed’ by Mary Cassatt

Discrimination on grounds of sexual orientation and the right to manifest one’s religious beliefs lock horns in a case built around progressive lifestyles and the security of dogma.

Having established herself as the owner operator of a bed and breakfast, the appellant consciously took bookings on principles espoused through Christian teachings, one of which precluded the use of double rooms by those outside wedlock. While considered a practical and measured restriction, the appellant was often found letting out such rooms to unmarried couples, largely due to the difficulty in establishing their marital status at the time of agreement.

However, the footing of this matter rested upon a homosexual couple, who having secured the room via email, and duly paying the required deposit, arrived at the property, before finding themselves denied use of the double room on grounds of their sexual relationship and unmarried status (an impossible task at the time of this hearing).

At the point of litigation, the claimants argued that the appellant had unlawfully discriminated against them under the terms of the Equality Act (Sexual Orientation) Regulations Act 2007 (SI 2007/1263), in particular regulations 3 and 4, which read:

“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).

4. (1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services”

While the appellant countered that she had refused the claimants use of the room under regulation 6, which reads:

“6.-(1) Regulation 4 does not apply to 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.”

Further arguing that her business fell outside the scope of a boarding house, as expressed in regulation 4(2)(b) of the same statutory instrument.

During the first hearing, the court refused to uphold her claim and found her liable for sexual discrimination on grounds of sexual orientation, whereupon the defendant argued her case in the Court of Appeal.

Here, the facts were given greater consideration, including various articles of the European Convention on Human Rights (ECHR). With regard to exemption from regulation 4(b), the Court observed that in Otter v Norman the House of Lords had ruled that:

“[T]he provision of breakfast by itself, with the implicit inclusion of the ancillary services involved in preparing it and the provision of crockery and cutlery with which to eat it, amounted to “board” within the meaning of section 7(1) [of the Rent Act 1977].”

However, with careful observation of regulation 6(1), it was noted by the Court that the claimants were anything but members of her family, children, elderly persons of those requiring special degree of care and attention. The appellant also relied upon Preddy v Bull for her contention that her refusal of the respondents occupation was one based upon an objection to sexual behaviour, and not orientation; yet sadly the parties involved were in a civil partnership, which distinguished it from the immediate case.

Turning instead to proportionality for justification, the appellant relied upon arts.8 (Right to respect and private family life) and 9 (Freedom of thought, conscience and religion) of the ECHR for her right to exclusion, while the respondents relied upon arts.8 and 14 (Prohibition of discrimination) to uphold their right to occupation.

It was then noted that while art.9(1) provides for religious manifestation, art.9(2) also provides that restrictions apply when preserving the rights of others, which on this occasion worked against the appellant, as she was by all accounts, running a commercial enterprise, and which under a Government paper titled “Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services, Government Response to Consultation” it was outlined on page 13 that:

“The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted.”

While it was also stressed in Eweida and others v United Kingdom that:

“Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.”

And so despite any freedom to manifest one’s religious beliefs when operating a licensed business to paying customers, indirect discrimination through the application of a policy denying equal rights to those in homosexual relationships amounted to a uniform ruling of direct discrimination on grounds of sexual orientation, while the appeal court held that:

“[D]irect discrimination cannot be justified, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”

Midland Bank Plc v Cooke (1995)

English Property Law

Midland Bank Plc v Cooke
Image: ‘Pillars of Deceit’ by Michael Lang

When two first-time homebuyers rely upon a financial donation from family members, the equality of shared ownership can become displaced, despite individual perceptions of common intention and the partnership of marriage.

When two young newlyweds entered into a mortgage of their family home, it was not without a significant cash contribution from the groom’s parents. This gift was bestowed upon the couple after the bride’s parents had covered the costs of the wedding, and therefore implied equal investment into their committed relationship. At the time of conveyance, the deeds fell under sole title in favour of the groom, and no assumptions were otherwise made than it was their home, and that both parties were joint occupants and thus entitled to equal benefits.

A few years after the purchase, the nature of the mortgage altered, and was now liable under the terms of an acquiring bank, at which point the wife was asked to sign away any beneficial interest she held in favour of the new mortgagee. Her agreement to this request was given (albeit under visible duress) so that the husband could continue to run his business, while the family (now with three children) could remain in secure occupation.

After re-mortgaging the property a number of years later, the wife took the opportunity to have her name included within the title, and thus became a legal tenant-in-common. When the business began to fail and the mortgage fell into unrecoverable default, the bank sought to repossess, at which point the wife challenged the order on grounds that any relinquishing of interest had not been of her volition, rather that her now estranged husband’s undue influence led her to act against her will and under marital obligation.

In the first hearing, the judge found in favour of the wife on the grounds described, before going further to explain that while her collective time and monies invested into the home during the course of their marriage could not translate into an equal half-share of the property, it did result in a six percent stake hold, arising from her half-share entitlement of the cash gifted by the groom’s parents at the point of purchase; and therefore under those circumstances, any repossession order could not stand.

When challenged by the bank and the wife in the Court of Appeal, the principle of shared equity was given greater consideration, along with the equitable maxim ‘equality is equity‘, which on this occasion was not relied upon. Instead, it was agreed that the wife’s actions first dismissed as non-contributory,  were embraced as wholly acceptable, despite no verbal agreements between the couple as to whether or not the home was equally divisible to begin with.