Judgments - Secretary of State for Work and Pensions (Appellant) v. M (Respondent)

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    He agreed, although only with some hesitation, with Sedley LJ's application of section 3 of the 1988 Act (para 139). Kennedy LJ rejected all M's claims on the ground that (para 173):

    "no reliance can be placed on article 14 because neither article 8 nor article 1 Protocol 1 are sufficiently engaged."

    He expressed no view as to the possible application of section 3 of the 1998 Act.

The issues before the House

    55.  There are three issues before the House. They can be stated (substantially as formulated in the agreed statement of facts and issues) as follows:

    (1)  Does the application to Ms M of the maintenance formula contained in the Regulations fall within the ambit of article 8 or article 1FP for the purposes of article 14 of the Convention?

    (2)  If so, would the application of the Regulations (if interpreted without recourse to section 3(1) of the 1998 Act) be contrary to Ms M's rights under article 14?

    (3)  If so, does section 3(1) operate to modify the interpretation of the Regulations, and (if not) what other remedy should be granted?

The first issue: "ambit" generally

    56.  In Botta v Italy (1998) 26 EHRR 241, 259, para 39 the European Court of Human Rights ("the ECHR") described (in terms which are now very familiar) the relationship between article 14 and other articles conferring particular Convention rights:

    "According to the Court's case law, 'article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions—and to this extent it is autonomous—there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter.'"

    The quotation is from the judgment of the ECHR in Abdulaziz Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471,499, para 71 (a well-known case about discrimination between husbands and wives in the field of immigration law). The case law can be traced back to National Union of Belgian Police v Belgium (1975) 1 EHRR 578 (see para 44) and to the Belgian Linguistics case (No 2) (1968) 1 EHRR 252 (see paras 9-10).

    57.  The Strasbourg case law repeatedly uses, in the English language versions of its judgments, the expressions 'within the ambit' or 'within the scope' in order to describe the sort of link which must be established between any alleged discrimination and the article conferring a particular Convention right (which I will call "the substantive article"). Similarly the French language versions use terms such as 'emprise' (grasp) and 'champ' (field). An equivalent expression often found in our domestic case law, but not in the Strasbourg case law, is that Convention rights under a substantive article are "engaged." Its use is however not entirely uniform, and may give rise to misunderstanding, as Lord Hope of Craighead pointed out in Harrow London Borough Council v Qazi [2004] 1 AC 983, 1003, para 47.

    58.  In the course of the appeal hearing there was some discussion, to my mind rather arid, as to whether the requirement for the alleged discrimination to be within the ambit of the substantive article was an autonomous concept. It is no doubt an autonomous concept in the sense that any attempt by a national legislature to achieve some artificial narrowing of its meaning would be ineffective. But article 14 does not use the expression; it speaks simply of "the enjoyment of" the Convention rights and freedoms being "secured without discrimination." The Strasbourg case law does not, and could not, spell out any simple bright-line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article.

    59.  When Ghaidan v Godin-Mendoza [2004] 2 AC 557 came to this House my noble and learned friend Lord Nicholls of Birkenhead referred to this point. He mentioned the expressions "within the ambit" of the right conferred by the substantive article, "one of the modalities" of the exercise of the right, and "linked" to the exercise of the right (the latter two expressions being used in Petrovic v Austria (1998) 33 EHRR 307, 318, 319, paras 22 and 28). Lord Nicholls went on to observe (p 566, para 11):

    "These expressions are not free from difficulty. In R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577, 592-595, paras 32-41, Laws LJ drew attention to some difficulties existing in this area of the Strasbourg jurisprudence. In the Court of Appeal in the present case Buxton LJ appeared to adopt the approach, espoused in the leading text book Grosz, Beatson & Duffy, Human Rights: The 1998 Act and the European Convention (2000), p327, para C14-10, that 'even the most tenuous link with another provision in the Convention will suffice for article 14 to enter into play': [2003] Ch 380, 387, para 9. In your Lordships' House counsel for the First Secretary of State criticised this approach. He drew attention to later authorities questioning its correctness: R (Erskine) v London Borough of Lambeth [2003] EWHC 2479 (Admin), paras 21-22, per Mitting J ('it overstates the effect of the Strasbourg case law') and R (Douglas) v North Tyneside Metropolitan Borough Council [2004] 1 WLR 2363, paras 53-54, per Scott Baker LJ."

    60.  It was not an issue which this House had to resolve in Ghaidan. It is a live issue in this appeal. Though there is no simple bright-line test, general guidance can be derived from the Strasbourg case law, and it does not in my opinion lead to the conclusion that even a tenuous link is sufficient. Nor does it lead to the conclusion that precisely the same sort of approach is appropriate, whatever substantive article is in point. That is particularly important, I think, in considering the ambit of article 8.

    61.  Some Convention rights have a reasonably well-defined ambit (or scope). Article 11 (freedom of assembly and association) is one example. In National Union of Belgian Police v Belgium (1975) 1 EHRR 578 the Belgian Government failed to consult a municipal police union about legislation affecting public sector employment rights. The union's direct claim under article 11 failed, but article 14 was engaged (though on the particular facts the article 14 claim also failed). Another example is article 2 of the First Protocol (headed "the right to education," but commencing in a negative manner, "no person shall be denied the right to education"). This article sets an undemanding standard, but its ambit is one in which discrimination is particularly likely to occur, and so it is a field in which claimants are more likely to succeed under article 14 than under the substantive article. The well-known case of R v Birmingham City Council Ex p Equal Opportunities Commission [1989] AC 1155 (in which proportionately fewer grammar school places were available for girls than for boys) was decided under domestic law years before the commencement of the 1998 Act, but in Convention terms it would have been a classic example of discrimination amounting to a breach under article 14, although there was no breach under the substantive article (since there is no general right to grammar school education). The Belgian Linguistics case provides (on the 5th question, paras 26-32) an early example under the Convention, although the facts were complicated and the discrimination was on the grounds of language rather than gender. As I shall seek to demonstrate, article 8 is very different because of its much wider and much less well-defined ambit.

The first issue: article 8 case law

    62.  I have already set out the text of article 8. It has been described as one of the most open-ended provisions of the Convention (Jacobs & White, European Convention on Human Rights, 3rd ed. (2002) p 217, referring to Feldman, "The developing scope of article 8 of the European Convention on Human Rights" [1997] EHRLR 265 and Warbrick,"The Structure of article 8" [1998] EHRLR 32). It has several striking features. First, uniquely among the Convention rights, the right conferred is a right to "respect" for one's private and family life and one's home and correspondence: not a right to privacy or to family life, or to a home. This gives rise to both negative and positive obligations whose boundaries are not easy to discern. Second, although personal privacy is certainly an important constituent element of the right to respect for private life, that right is not exclusively (and perhaps not even primarily, as the law seems to be developing) concerned with personal privacy. Third, there has been a similar tendency to extend the scope of respect for family life.

    63.  The Strasbourg Court has however shown itself to be well aware of the dangers of any unrestrained or unprincipled extension of article 8. A large number of Strasbourg authorities have been referred to on this topic, some concerned with respect for private life, some concerned with respect for family life or the home, and a few concerned with other Convention rights. I shall refer to the most important of these, in chronological order, as briefly as I can, and then seek to draw some conclusions as to respect for private life and respect for family life, the two approaches on which Ms Monaghan relies (with variations so far as family life is concerned). Some of the authorities are also relevant on the second issue.

    64.  The first case, Dudgeon v United Kingdom (1981) 4 EHRR 149 was concerned with the position of a male homosexual in Northern Ireland at a time when private sexual activity which would have been lawful in England (under the Sexual Offences Act 1967) was in theory a serious criminal offence, but did not in practice lead to prosecution, in Northern Ireland. The ECHR (without opposition from the United Kingdom), at para 41, agreed with the Commission that

    "the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant's right to respect for his private life (which includes his sexual life) within the meaning of article 8(1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life."

    The case turned mainly on whether the climate of opinion in Northern Ireland provided justification under article 8(2). The ECHR made no separate ruling under article 14, regarding it as unnecessary to do so.

    65.  Ms Monaghan relied on Van Der Mussele v Belgium (1983) 6 EHRR 163, the case of the pupil-advocate who objected to being required to do his stint of pro bono work. His complaint was (very unusually) made under article 4 of the Convention (forced labour) and the judgment is authority to the proposition (para 43) that "Work or labour that is in itself normal may in fact be rendered abnormal if the choice of the groups or individuals bound to perform it is governed by discriminatory factors." Nevertheless the claim failed on the allegation of discrimination. I do not think that this unusual case assists either side.

    66.  I have already referred to Abdulaziz (1985) 7 EHRR 471, a well-known case about article 14 in conjunction with article 8. The complaint was squarely within the ambit of respect for family life, since it was concerned with whether wives (settled in the United Kingdom) would be able to be reunited with their husbands (who were outside the United Kingdom).

    67.  Norris v Ireland (1989) 13 EHRR 186 was the Republic of Ireland's counterpart of Dudgeon, except that the Irish government contended (unsuccessfully) that article 8 was not applicable at all since (para 37) "the applicant had been able to maintain an active public life side by side with a private life free from any interference on the part of the State or its agents." There was no reliance on article 14.

    68.  Logan v United Kingdom App No 24875/94 (6 September 1996) was a decision of the Commission that an application was inadmissible because it was manifestly ill-founded. Complaints were made under articles 6, 8 and 9 (not 14). It merits passing mention only because the applicant was aggrieved by a CSA assessment made under the 1991 Act. His complaint under article 8 was that the maintenance which he had to pay gave him insufficient money to maintain reasonable contact with his children. The Commission noted that the CSA legislation "insofar as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life." Nor, on the facts, was the financial burden on the applicant such as to disclose any lack of respect for his rights under article 8.

    69.  Mr Sales relied on Botta v Italy (1998) 26 EHRR 243, to which I have already referred. The applicant was physically disabled and complained of the lack of facilities for the disabled at a seaside holiday resort; he contended that this lack of facilities was in breach of national law. The ECHR rejected his complaint both under article 8 (lack of respect for private life) and under article 14 in conjunction with article 8. In the context of the state being under a positive obligation, it distinguished cases (such as Airey v Ireland (1979) 2 EHRR 305) in which a "direct and immediate link" had been established between the measures sought and the applicant's private or family life. It concluded (para 35) that the right claimed

    "concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."

    The case was not within the ambit of article 8 at all, and therefore the claim under article 14 also failed.

    70.  Petrovic v Austria (1998) 33 EHRR 307 was concerned with a father's complaint under 14 in conjunction with article 8 (family life) of discrimination in that he (unlike his wife) had not been allowed a parental leave allowance. The ECHR held that the matter was within the scope of article 8 (paras 26-29) and that there was a difference in treatment on the ground of sex (para 35). However (paras 38-39)

    "the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States.

    It is clear that at the material time, that is at the end of the 1980s, there was no common standard in this field, as the majority of the Contracting States did not provide for parental leave allowances to be paid to fathers."

    The case is of interest because the ECHR referred in para 28 (citing an expression in the National Union of Belgian Police case (1975) 1 EHRR 578, (para 45) to a test of whether "the subject-matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed" (but in para 29 it actually applied the more familiar test of "within the scope"). The case is also of interest in attaching importance to the gradual evolution of cultural and social standards in Europe (paras 40-41):

    "Only gradually, as society has moved towards a more equal sharing between men and women of responsibilities for the bringing up of their children, have the Contracting States introduced measures extending to fathers, like entitlement to parental leave.

    In this respect Austrian law has evolved in the same way, the Austrian legislature enacting legislation in 1989 to provide for parental leave for fathers. In parallel eligibility for the parental leave allowance was extended to fathers in 1990.

    It therefore appears difficult to criticise the Austrian legislature for having introduced in a gradual manner, reflecting the evolution of society in that sphere, legislation which is, all things considered, very progressive in Europe."

    71.  Marzari v Italy App No 36448/97, 4 May 1999 was an admissibility decision rejecting an application under article 8 by a disabled tenant of a public housing authority. When the authority declined to carry out various works which the tenant asked for, he stopped paying rent and after a good deal of indulgence he was eventually evicted. The Court, following Botta, held that there was a positive obligation on the state to assist with housing needs where "there is a direct and immediate link between the measures sought by the applicant and the latter's private life."

    72.  Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548 were the sequel to R v Ministry of Defence Ex p Smith [1996] QB 517. In two separate judgments delivered on 27 September 1999 the ECHR decided in favour of two men who had been discharged from the Royal Navy, and a woman and a man who had been discharged from the Royal Air Force despite their exemplary records, on the grounds of their admitted homosexuality. Their discharge was not for any misconduct but in line with official policy. The United Kingdom government accepted (para 70 of Smith and para 63 of Lustig-Prean) that the intrusive investigation and humiliating discharge of the applicants had been interferences with their right to respect for their private lives, and the case turned on justification under article 8(2). The ECHR found no separate issue under article 14 (paras 116 and 109 respectively).

    73.  In Salgueiro de Silva Mouta v Portugal (1999) 31 EHRR 47, a divorced father, who then entered into a same-sex relationship, was awarded custody of his daughter by the Lisbon Family Court. The Court of Appeal reversed this decision solely (as the ECHR found) on the ground of the father's sexual orientation. The ECHR found a breach of article 14 in conjunction with article 8 on the basis that the overruling of the Family Court was an interference with the father's right to respect for his family life. The government of Portugal accepted (para 25) that the matter was within the ambit of article 8, but only as regards respect for family life.

    74.  Ms Monaghan placed some reliance on Thlimmenos v Greece (2000) 31 EHRR 15. A person who had been convicted of felony was prohibited by law from becoming a member of the Greek chartered accountants' professional body. The applicant, a Jehovah's Witness, had been convicted of felony for refusing, for religious reasons, to enlist in the army. He relied on article 14 in conjunction with articles 6 and 9. The case demonstrates (para 44) that

    "The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."

    It also shows that the ECHR was prepared to look through the undisputed fact of the applicant's conviction for felony to see that it arose from his conscientious objection to military service (within the ambit of article 9) and not from any disgraceful conduct. To that extent it shows the ECHR as being sensitive to the full facts of the particular case. Beyond that I do not find it of much assistance.

    75.  Estevez v Spain (ECHR 10 May 2001) is of some importance as it is the first case put before the House in which a homosexual relied on article 14 in conjunction with respect for family life (as well as respect for private life) under article 8. After his partner had died in an accident the applicant claimed a social security allowance as a surviving spouse. When this was refused he applied to the ECHR. The ECHR ruled the application inadmissible as manifestly ill-founded. As regards respect for family life it stated (p 4),

    "The Court considers that, despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation … Accordingly, the applicant's relationship with his late partner does not fall within article 8 insofar as that provision protects the right to respect for human life."

    As regards respect for private life it accepted that the complaint might be within the ambit of article 8, but that the Spanish legislation had a legitimate aim, "the protection of the family based on marriage", and that the difference in treatment was within the State's margin of appreciation. Consequently the claim failed both under article 8 alone and under article 14 in conjunction with article 8.

    76.  Pretty v United Kingdom (2002) 35 EHRR 1 was the well-known case concerned with a sufferer from motor neurone disease who wished for assisted suicide. Its importance here is for the ECHR's recent wide statement of the scope of private life under (para 61):

    "As the Court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."

    Nevertheless the ECHR did not extend the right to respect for private life so far as to cover personal autonomy over assisted suicide.

    77.  Goodwin v United Kingdom (2002) 35 EHRR 18 was the culmination of a line of cases in which the ECHR had, by increasingly slim majorities, rejected claims by United Kingdom transsexuals that their inability to marry infringed their rights under article 8 (and article 12). In Goodwin there was a unanimous finding of breach of both articles, with no separate finding about article 14. The ECHR paid particular attention (paras 92-93) to the United Kingdom's slow response to its warnings in earlier cases, concluding,

    "that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant."

    78.  Frette v France (2002) 38 EHRR 438 concerned a single homosexual man who wished to adopt a child. The ECHR found that the claim was within the ambit of article 8 (apparently as regards respect for family life, though the judgment is not entirely clear) but dismissed the claim under article 14, in conjunction with article 8, on margin of appreciation grounds (paras 40-44). However the applicant was successful on a separate complaint of a breach of article 6.

    79.  Karner v Austria (2003) 38 EHRR 528 was on facts comparable to those of Estevez, except that the surviving same-sex partner was seeking succession to a tenancy (of their previously shared flat) rather than a social security benefit. It was decided on the "home" limb of article 8. Several interveners

    "pointed out that a growing number of national courts in European and other democratic societies require equal treatment of unmarried different-sex partners and unmarried same-sex partners, and that that view is supported by recommendations and legislation of European institutions" (para 36).

    The claim succeeded. As to the margin of appreciation the ECHR stated (paras 40-41):

    "The Court can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment. It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality has been respected.

    The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to Member States is narrow, as [is] the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary to exclude persons living in a homosexual relationship from the scope of [the relevant provision] of the Rent Act in order to achieve that aim."

    80.  Connors v United Kingdom (2004) 40 EHRR 189 is a very important decision, on respect for the home under article 8, which is currently being considered by another appellate committee of this House. For present purposes I wish to refer only to one general passage about article 8 (para 82), that it

    "concerns rights of central importance to the individual's identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community. Where general social and economic policy considerations have arisen in the context of article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant."

    The footnotes to this passage refer to Gillow v United Kingdom (1989) 11 EHRR 335 para 55; Pretty; Goodwin; and Hatton v United Kingdom (2002) 34 EHRR 1, paras 103 and 123. Although the "extent of the intrusion into the private sphere" is here being treated as relevant to the state's margin of appreciation, the authorities suggest to me that it is also not without relevance to the question of ambit.

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