House of Lords
|Session 2005 - 06|
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Secretary of State for Work and Pensions (Appellant) v. M (Respondent)
LORD BINGHAM OF CORNHILL
1. I have had the great benefit of reading in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I am in complete agreement with it, and would for the reasons which he gives make the order which he proposes. My noble and learned friend's comprehensive summary of the relevant materials and authorities, for which I am greatly indebted to him, enables me to indicate quite briefly (and with no intention to derogate from his reasoning) why I agree with him.
2. Ms M. the respondent, is the mother of two children who spend the greater part of each week with their father, her former husband from whom she is divorced. Under the Child Support Act 1991 she, as the non-resident parent, is required to contribute to the costs of maintaining the children incurred by the father as the parent with care. The amount of her contribution is calculated according to complex rules laid down in regulations made under the 1991 Act, and are in important respects modelled on rules which have for many years obtained in the administration of social security benefits. According to those rules, in assessing a person's entitlement to benefit, some account has until recently been taken of the income and outgoings of a heterosexual partner with whom an applicant is living, but not of those of a homosexual partner. This may, and often does, work to the benefit of an applicant, but may work to the applicant's disadvantage. It does so in the case of Ms M. She now lives with a homosexual partner. As applied to her, on the facts of her case, the rules result in her being required to pay more towards the maintenance of her children than she would have to pay if she were living with a heterosexual partner.
3. Ms M. does not complain that her rights under article 8 of, or article 1 of the First Protocol to, the European Convention are or have been violated. She claims that her situation falls within the ambit or scope of these provisions and that she is accordingly entitled to complain that her enjoyment of these rights has been the subject of adverse discrimination on the ground of sex, in violation of article 14 in conjunction with either the article or the protocol or both.
4. It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol ("IFP"), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. Like my noble and learned friend in para 60 of his opinion, I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.
5. Like Kennedy LJ in the Court of Appeal, I do not think the enhanced contribution required of Ms M. impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M. has less money to spend than if she were required to contribute less (or would do so, but for the discretionary adjustment to which my noble and learned friend refers in paragraph 46 of his opinion). But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent's liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which IFP is directed.
6. Even if the child support regime is, in the respect complained of, within the ambit of a Convention right, Ms M's complaint of discrimination is in my view anachronistic. By that I mean that she is applying the standards of today to criticise a regime which when it was established represented the accepted values of our society, which has now been brought to an end because it no longer does so but which could not, with the support of the public, have been brought to an end very much earlier. Historically, both the law and public opinion withheld their sanction from a relationship between a man and a woman which was not sanctified by marriage or at least regularised by civil ceremony, and homosexual relationships were criminalised or condemned. When extra-marital heterosexual relationships became more generally accepted by the law and public opinion, recognition of homosexual relationships (even of those no longer criminal) was still withheld. Even now there remain bodies of opinion in this country (and much larger bodies of opinion in some other countries) for whom such recognition is still a step too far. But a democratic majority, by enacting the Civil Partnerships Act 2004, has established a new consensus and removed the feature of the old social security and child support regimes of which Ms M. complains. If such a regime were to be established today, Ms M. could with good reason stigmatise the regime as unjustifiably discriminatory. But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which, given the size of the overall task and the need to recruit the support of the public, could scarcely have been reformed sooner.
LORD NICHOLLS OF BIRKENHEAD
7. The Child Support Act 1991 made provision for the payment of maintenance for children whose parents are living apart. The effect of regulations made under the Act was that in some circumstances the payments due from a non-resident parent living with a person of the opposite sex as husband and wife were less than the amounts due from a corresponding non-resident parent living with a person of the same sex. Hence this claim for unlawful discrimination.
8. After the proceedings started the impugned regulations were amended by the Civil Partnership Act 2004. This Act came into force on 5 December 2005. The alleged discrimination no longer exists. The question before the House is whether the law in force until 5 December 2005 violated the claimant's Convention rights.
Article 14 and the claimant's family life
9. The primary claim advanced in the proceedings was that the difference in treatment of same sex couples and heterosexual couples violated the claimant's Convention right under article 14 of the European Convention on Human Rights taken in conjunction with the protection afforded to family life by article 8. Thus the first question for consideration is whether the facts of this case engage article 14 as claimed.
10. This question gives rise to a definitional problem. Article 14 does not create a right independently of the other substantive provisions of the Convention. That is trite law. Instead, article 14 guarantees that 'enjoyment of the rights and freedoms set forth in this Convention' shall be secured without discrimination on the stated grounds.
11. The subject matter thus guaranteed contrasts sharply with the subject matter of article 1 of the twelfth protocol. This article, not yet operative in this country, guarantees the 'enjoyment of any right set forth by law' without discrimination. The language of article 14, and the contrast with the generality of the language of article 1 of the twelfth protocol, might suggest that article 14 is aimed exclusively at the way a state discharges its obligations under the other substantive articles of the Convention.
12. That is not how the European Court of Human Rights has interpreted article 14. Under the Strasbourg jurisprudence it is now well established that article 14 is not so confined. Article 14 has a wider scope than this. This wider interpretation must now be regarded as settled law even though it can give rise to difficulty in identifying the extended boundary of article 14.
13. The extended boundary identified in the Strasbourg jurisprudence is that, for article 14 to be engaged, the impugned conduct must be within the 'ambit' of a substantive Convention right. This term does not greatly assist. In this context 'ambit' is a loose expression, which can itself be interpreted widely or narrowly. It is not a self-defining expression, it is not a legal term of art. Of itself it gives no guidance on how the 'ambit' of a Convention article is to be identified. The same is true of comparable expressions such as 'scope' and the need for the impugned measure to be 'linked' to the exercise of a guaranteed right.
14. The approach of the ECtHR is to apply these expressions flexibly. Although each of them is capable of extremely wide application, the Strasbourg jurisprudence lends no support to the suggestion that any link, however tenuous, will suffice. Rather, the approach to be distilled from the Strasbourg jurisprudence is that the more seriously and directly the discriminatory provision or conduct impinges upon the values underlying the particular substantive article, the more readily will it be regarded as within the ambit of that article; and vice versa. In other words, the ECtHR makes in each case what in English law is often called a 'value judgment'.
15. This approach finds explicit recognition in the context of article 8 in the judgment of the ECtHR in Sidabras v Lithuania 27 July 2004. The applicants were former KGB officers. As such they were subject to wide-ranging employment restrictions. The court held that the possible damage to their leading a normal personal life was a factor to be taken into account 'in determining whether the facts complained of fall within the ambit of Article 8 of the Convention': paragraph 49.
16. In one respect the ECtHR jurisprudence has been more specific. Article 14 is engaged whenever the subject matter of the disadvantage comprises one of the ways a state gives effect to a Convention right ('one of the modalities of the exercise of a right guaranteed'). For instance, article 8 does not require a state to grant a parental leave allowance. But if a state chooses to grant a parental leave allowance it thereby demonstrates its respect for family life. The allowance is intended to promote family life. Accordingly the allowance comes within the scope of article 8, and article 14 read with article 8 is engaged: Petrovic v Austria (2001) 33 EHRR 14, paras 27-30.
17. The latter principle is in point in the present case. The Child Support Act 1991 is one of the ways the United Kingdom evinces respect for children and the life of the family of which the child is part. In the present case that means primarily the family life of the claimant's children and their resident parent, that is, their father (the claimant's former husband). But, on this, there is an immediate difficulty confronting the claimant: the impugned regulations have no adverse impact on that family life. The adverse impact of which the claimant complains is the adverse impact the regulations have on her as a partner in her family relationship with her new partner. Her complaint is that she is treated differently, and is worse off financially, than she would be if she were living with a man.
18. Quite apart from her relationship with her new partner, the claimant herself enjoys family life with her own children. They come and stay with her for two or three days each week. But, again, this does not assist her. The discrimination of which she complains is not discrimination against her as a non-resident parent. It is discrimination against her as a partner in a same sex relationship. There is no suggestion that the latter discrimination has had any significant adverse impact on her family life with her children.
19. I turn next to the claimant's relationship with her same sex partner. The family life of a child and his parents is not the only family life the Child Support Act 1991 seeks to protect. The statutory formulae for calculating the amounts payable also have regard to the non-resident parent's life with any new 'partner' he or she may have. For instance, the formulae make allowance for the housing costs of the non-resident parent's new household. Affording protection in this way to the non-resident parent's new family life, that is, the family life of the non-resident parent and his or her new partner, is not a primary purpose of the legislation. Nonetheless, it is a feature built into the statutory scheme. By this means the United Kingdom demonstrates its respect for the non-resident parent's new family life. As such this feature of the scheme is, in the language of the Strasbourg jurisprudence, one of the 'modalities of the exercise of a right guaranteed'. Subject to what I shall say later regarding the Convention meaning of 'family', this feature brings this aspect of the statutory scheme within the ambit of article 8.
20. This is where discrimination intruded into the pre-amendment regulations. Under these regulations 'partner' was defined in a way which included a heterosexual partner but excluded a same sex partner. The effect of this was complicated because the statutory formulae are detailed and complex. For present purposes it is sufficient to note that where a non-resident parent is part of a heterosexual couple, whether married or not, a combined approach is taken to the couple as a unit. In contrast, under the pre-amendment scheme where a non-resident parent was part of a same sex couple a different 'stand alone' approach was adopted. The financial consequence of this was that the claimant's liability for child support payment was assessed at a higher amount than would have been the case if her new relationship were heterosexual. The claimant was liable for child support payments of £46.97 per week. Had she and her partner been treated in the same way as an unmarried heterosexual couple her liability would have been only £13 per week. In this way the regulations afforded a different level of respect to same sex family life than heterosexual family life.
Family life and same sex couples
21. I must now retrace my steps a little. Thus far I have referred without elaboration to the family life of the claimant and her same sex partner. I must now consider an important point not yet mentioned: whether a same sex couple can constitute a 'family' for the purposes of article 8.
22. On this the starting point scarcely calls for mention: the fundamental change in social attitudes towards same sex couples in a remarkably short time both in this country and abroad. In this country homosexual offences, some carrying a maximum punishment of imprisonment for life, were re-enacted as recently as 1956. These provisions remained on the statute book until 1967. Today same sex couples can enter into a form of partnership pursuant to the Civil Partnership Act 2004. The change has gone full circle. What was proscribed and punished is now countenanced and approved by law.
23. This change in attitudes towards same sex relationships has been reflected in two recent decisions of your Lordships' House. In Fitzpatrick v Sterling Housing Association Ltd  1 AC 27 the House held that a same sex partner was capable of being a member of the original tenant's 'family' within the meaning of the Rent Act 1977, schedule 1, paragraph 3. Ghaidan v Godin-Mendoza  2 AC 557 concerned the statutory right of a surviving spouse to succeed to the original tenant's tenancy of a flat. The House held that the less secure position of a survivor of a same sex couple, as compared with the survivor of a heterosexual couple, violated article 14 taken in conjunction with the protection afforded by article 8 to respect for the claimant's home. Observations in both those decisions point irresistibly to the conclusion that, depending always on the particular context, under the law of this country as it has now developed a same sex couple are as much capable of constituting a 'family' as a heterosexual couple.
24. The context in which this question arises in the present case is article 8 of the European Convention on Human Rights reproduced as one of the Convention rights in the Human Rights Act 1998. In the Convention itself the meaning of 'family life' in article 8 depends upon the proper interpretation of this phrase in the Convention. In this context the phrase can have only one proper interpretation. In other words, the concept of family life in article 8 is an 'autonomous' Convention concept having the same meaning in all contracting states. According to the established Strasbourg jurisprudence that meaning does not embrace same sex partners. Under the Strasbourg case law same sex partners still do not fall within the scope of family life.
25. This was reiterated by the ECtHR in Estevez v Spain, 10 May 2001. The court noted the growing tendency in a number of European states towards the legal and judicial recognition of stable de facto partnerships between homosexuals. The court considered that, despite this, there was still little common ground between the contracting states. This was an area where the contracting states 'still enjoy a wide margin of appreciation'. The court held that, accordingly, the applicant's relationship with his late partner 'does not fall within Article 8 in so far as that provision protects the right to respect for family life'.