The discussion since yesterday on the decision for Martyn Hall and Steven Preddy’s discrimination claim has focussed on discrimination and the hotel owner’s right to religion. It surprises me that no-one has commented as yet on the effects of this type of law which enforces certain standards on individuals and businesses in how they operate. These laws create claims similar to those under the Human Rights Act, but against private as well as public authorities.
Let me explain. Hall and Preddy were refused double bedroom accommodation at the Chymorvah hotel because they were unmarried. The devout Christian owners believed in chastity before marriage and practised their beliefs in the way they ran their hotel. The problem was Hall and Preddy were also homosexual, and because they never had a chance of being married (only becoming civil partners) this policy discriminated against them under the Equality Act (Sexual Orientation) Regulations 2007. What this decision does, along with this type of regulation, is enforce rules on how individuals and small businesses (such as the owners of Chymorvah hotel) are allowed to act in how they operate. For example, the regulations make clear the hotel owners may not refuse a bedroom for guests on the grounds of sexuality.
Interesting that this was the exact reason why, twelve years ago, the Human Rights Act was not made enforceable against an individual by an individual (so called ‘horizontal effect’). In the Parliamentary debates the need to preserve the integrity of the private sphere, thus allowing individuals to pursue their own conception of good, was considered crucial. Lord Irvine was clear about this enforceability limitation to the Act, stating it “should only apply to public authorities and not to individuals”. The Hall and Preddy case, and regulations like the ones that were involved, show this rationale is slowly being abandoned and we have various inroads into the principle.
Of course, the Hall and Preddy case was not litigated under the Human Rights Act, rather the Equality Regulations. But the effect, though admittedly not the purpose, of these regulations is to make a claim under the Human Rights Act which would only be available against a public authority, available against a private individual (the Human Rights Act claim would centre on article 8 and 14, the right to be free from discrimination on grounds of sexuality).
The law has struggled with the rationale of imposing human rights standards on individuals. A topic of note in this respect is the rejection by UK courts of a reasonable access right to property in order to give effect to freedom of speech. A private shopping mall owner may still exclude protestors from his land if he disagrees with their point of view. But even this has come under criticism from many legal academics for not sufficiently protecting free speech and it is foreseeable that a reasonable access right may be created soon.
The Human Rights Act set out to ingrain a human rights culture in our law and society. It was limited to providing a claim only against a public authority. However, since then the human rights culture in the law has been steadily growing and we now have claims similar to those under the Human Rights Act which are available against private individuals. Surely it will not be long before rights have full horizontal effect?