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The ECHR right within whose ambit the appellants claim to come is article 8 which provides: Right to respect for private and family life 1. STA |
Everyone has the right to respect for his private and family life, his home and his correspondence. STA |
2. STA |
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the prot... |
Before Andrews J and the Court of Appeal it had been submitted that an adverse effect in relation to article 8 had to be demonstrated in order for an avowed infringement to come within its scope or ambit. Ratio |
Counsel for the respondent did not seek so to argue before this court. Ratio |
They were right not to do so. Ratio |
Recent case law from the European Court of Human Rights (ECtHR) makes it clear that no detrimental effect need be established - see, for instance, Schalk and Kopf v Austria (2010) 53 EHRR 20; Vallianatos v Greece (2013) 59 EHRR 12; and Oliari v Italy (2015) 65 EHRR 26. PRE |
In particular, in Vallianatos ECtHR found that the introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention (paras 80-92). PRE |
It is therefore now accepted that access to civil partnerships falls within the ambit of article 8; that there is a difference in treatment between same sex couples and different sex couples in relation to the availability of civil partnerships; that this difference in treatment is on the ground of sexual orientation, ... |
In these circumstances, the only basis on which the respondent can escape a finding that there has been an infringement of the appellants article 14 rights is by showing that the unequal treatment is justified - Ghaidan v Godin-Mendoza [2004] 2 AC 557, per Baroness Hale at para 130. Ratio |
Justification - the arguments ARG |
On the question of justification, Ms Monaghan QC for the appellants advanced five propositions: 1. ARG |
The burden of proving justification is on the respondent: R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, per Lord Wilson at para 44 and Lady Hale at para 61; 2. ARG |
It is not the scheme as a whole which must be justified but its discriminatory effect: A v Secretary of State for the Home Department [2005] 2 AC 68 per Lord Bingham at para 68 and AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 per Baroness Hale at para 38; 3. ARG |
Where the difference in treatment is based on sexual orientation, a court must apply strict scrutiny to the assessment of any asserted justification: particularly convincing and weighty reasons to justify it are required - EB v France (2008) 47 EHRR 21, at para 91 and Karner v Austria (2003) 38 EHRR 24 at para 37; 4. A... |
The conventional four-stage test of proportionality (as outlined in cases such as Bank Mellat v HM Treasury (No 2) [2014] AC 700 and R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening) [2015] 1 WLR 3820, at para 33) should be applied; and 5. ARG |
In cases involving discrimination on the grounds of sexual orientation, to be proportionate, the measure must not only be suitable in principle to achieve the avowed aim, it must also be shown that it was necessary to exclude those of the specific sexual orientation from the scope of the application of the provision (V... |
For the respondent, Mr Eadie QC did not take particular issue with any of these propositions. ARG |
He submitted, however, that the government wanted to have a better sense of how civil partnerships would come to be regarded after same sex marriage became possible, before taking a final decision on their future. ARG |
This was, he claimed, a legitimate aim. ARG |
Moreover, it required to be considered in its historical context. ARG |
Between 2005 (on the coming into force of CPA) and 2014 (when MSSCA came into force) there was no question of discrimination between same sex and different sex couples. ARG |
Both had access to all the rights, entitlements and responsibilities that marriage entailed. ARG |
The only difference was that the gateways to those entitlements etc were differently labelled (although that is not quite how Mr Eadie put it). ARG |
Counsel emphasised that the various items of legislation were the product of evolution in societal values and standards; the executives and Parliaments consideration of those changes; and the measured response of the legislature to the conclusions that they had reached about them. ARG |
(Again, I acknowledge that this is a paraphrase, rather than a verbatim rendition, of Mr Eadies formulation of the argument). ARG |
The respondents defence of the appeal therefore proceeded principally on two related but distinct strands. ARG |
The first was that changes in the law in this sensitive area of social policy had been incremental. ARG |
CPA had been introduced as a reaction to perceived changes in social attitudes and to address the increasingly recognised anomaly that same sex couples did not have the opportunity which different sex couples had of legal recognition of their commitment to each other, with all the benefits that flowed from such commitm... |
At the time CPA was enacted, it was judged by the government and Parliament that society as a whole in the United Kingdom was not ready to contemplate extending the institution of marriage to same sex couples. ARG |
It is not disputed that this was a judgment that they were entitled to make. ARG |
The second strand of the respondents argument can be described in the following way: when in 2013 it was decided that same sex couples should be allowed to marry, the government and Parliament were presented with a choice. ARG |
Should they do away with civil partnerships for same sex couples or should they be retained? On one view, they should be abolished. ARG |
After all, same sex couples were being placed in precisely the equivalent position as different sex couples. ARG |
And, incidentally, in none of the countries of the Council of Europe where civil partnerships for same sex couples were transformed to marriage entitlement, had the civil partnership institution been maintained. ARG |
Rather than take that step, so says the respondent, the government and Parliament chose a sensible course of investigating whether there was a case for preserving the institution of civil partnership. ARG |
After all, some same sex couples might not wish to marry but to remain, or become, civil partners. ARG |
And, incidentally, a period of reflection and inquiry would allow a decision to be made on whether different sex couples should be allowed to avail of civil partnerships. ARG |
Momentous decisions of this type need, the respondent says, time for proper inquiry and consideration. ARG |
Requiring that time to be available while assessment of the options was taking place is a legitimate aim, it is claimed. ARG |
It is legitimate, therefore, to perpetuate the acknowledged inequality of treatment between the two groups, since that inequality is going to be eliminated one way or another in due course. ARG |
That course also fulfils, the respondent argues, the other requirements of proportionality. ARG |
Discussion of justification generally Ratio |
In Schalk and Kopf the applicants were a same sex couple. PRE |
They complained that Austrian law, which prescribed that the institution of marriage was available only to different sex couples, discriminated against them. PRE |
ECtHR held (by four votes to three) that there had been no violation of article 14, taken together with article 8. PRE |
The court held, however, that same sex couples were in a relevantly similar situation to a different sex couple as regards their need for legal recognition and protection of their relationship - para 99. PRE |
At the time that they lodged their application, there was no possibility of recognition of their relationship under Austrian law. PRE |
That changed with the coming into force of the Registered Partnership Act on 1 January 2010. PRE |
The court had to examine whether Austria should have provided a means of legal recognition of their partnership before that Act came into force. PRE |
In para 105 of its judgment the court noted that there was a growing European consensus about the recognition of same sex couples but that there was not yet a majority of states providing for legal recognition of same sex partnerships. PRE |
It concluded, therefore, that the area in question must be regarded as one of the evolving rights with no established consensus, where states must enjoy a margin of appreciation in the timing of the introduction of legislative changes. PRE |
The respondent relied on this decision as being an example of the many occasions on which the ECtHR has held that, in terms of timing of legislative change to recognise different forms of relationship, a wide margin of appreciation is appropriate. ARG |
That was so, Mr Eadie argued, even where there had been differential treatment on grounds of sexual orientation for some time. ARG |
He sought to draw an analogy between the Schalk and Kopf case and that of the appellants, by suggesting that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. ARG |
I do not accept that argument. Ratio |
In the first place, the approach of the ECtHR to the question of what margin of appreciation member states should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified. Ratio |
As Lady Hale said In re G (Adoption: Unmarried Couple) [2009] 1 AC 173, para 118: it is clear that the doctrine of the margin of appreciation as applied in Strasbourg has no application in domestic law. Ratio |
The Strasbourg court will allow a certain freedom of action to member states, which may mean that the same case will be answered differently in different states (or even in different legal systems within the same state). Ratio |
This is particularly so when dealing with questions of justification, whether for interference in one of the qualified rights, or for a difference in treatment under article 14. Ratio |
National authorities are better able than Strasbourg to assess what restrictions are necessary in the democratic societies they serve. Ratio |
So to that extent the judgment must be one for the national authorities. Ratio |
It follows that a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. Ratio |
It cannot avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, (at least not in the sense that the expression has been used by ECtHR). Ratio |
The court may, of course, decide that a measure of latitude should be permitted in appropriate cases. Ratio |
Before Andrews J the respondent had relied on the well-known statement of Lord Hope in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 at 381B where he said: difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. Ratio |
In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. Ratio |
It was therefore suggested to Andrews J that since the decision on the timing of legislation to extend or abolish civil partnerships lay firmly in the field of social policy, the court should show an appropriate degree of reticence in deciding whether the unequal treatment between same- and different sex couples was ju... |
That argument was repeated in this court. Ratio |
Mr Eadie relied on the decision of the House of Lords in M v Secretary of State for Work and Pensions [2006] 2 AC 91. Ratio |
In that case M was the divorced mother of two children who spent most of the week with their father, Ms former husband. Ratio |
She contributed to their maintenance under the Child Support Act 1991. Ratio |
She lived with a partner of the same sex. Ratio |
In calculating the amount of her child support contribution according to regulations made under the 1991 Act, Ms partners contribution to their joint housing costs was treated as reducing Ms deductible housing costs whereas if she had been living with a man his contribution to the mortgage would have been treated as pa... |
She argued that the assessment of her child support contributions engaged her rights under article 8 and Article 1 of the First Protocol to ECHR, and that she had suffered discrimination in her enjoyment of those rights contrary to article 14. Ratio |
By a majority, the House of Lords rejected Ms arguments. Ratio |
Mr Eadie placed particular emphasis on the statement of Lord Mance at para 153, where he said: Because of the front-line importance of a home, the Strasbourg and United Kingdom courts have been active at a relatively early stage to eliminate differences in treatment which were evidently unfair. Ratio |
The area of law with which the House is concerned is not so front-line. Ratio |
It is one where there are swings and roundabouts, advantages and disadvantages, for same sex couples in achieving complete equality of treatment. Ratio |
There are many allied areas of legislation that used similar terminology and required close attention, to achieve coherent, comprehensive reform. Ratio |
It is an area in relation to which Parliament and the democratically elected government should be recognised as enjoying a limited margin of discretion, regarding the stage of development of social attitudes, when and how fast to act, how far consultation was required and what form any appropriate legislative changes s... |
In as much as it can be suggested that what Lord Mance described as a margin of discretion is analogous to the margin of appreciation applied by the Strasbourg court, it must be noted that, even on the supranational plane, the margin in cases where distinctions are made on the ground of sexual orientation is narrow - V... |
The margin of discretion available to the government and Parliament in this instance, if it exists at all, must be commensurately narrow. Ratio |
Moreover, as Ms Monaghan has submitted (see para 20.3 above), where the difference in treatment is based on sexual orientation, a court must apply strict scrutiny to the assessment of any asserted justification and particularly convincing and weighty reasons to justify it are required. Ratio |
In this context, it is significant that the government consciously decided that it would not extend civil partnerships to different sex couples, at the time that it introduced MSSCA. Ratio |
And, as Andrews J observed in para 65 of her judgment, quoting Mr Squires (who then appeared on behalf of the respondent), the government had not only reached that definite conclusion, it elected to carry out a review before deciding what, if anything, it should do. Ratio |
Indeed, when, in its estimation, that review proved inconclusive, the government decided to wait for a time until further hard evidence was available to enable it to take a considered view as to what to do. Ratio |
In light of what we were told was the governments awareness that the effect of introducing MSSCA was inequality between same- and different sex couples, this displayed, at best, an attitude of some insouciance. Ratio |
Andrews J rejected the suggestion that the present case was analogous to Vallianatos, stating, at para 71 of her judgment that it is far closer to Schalk, in which there was recognition by the ECtHR that a member state should be afforded a relatively generous leeway as to the timing of introducing legislative changes i... |
I do not agree that the situation of the appellants is close to that of Schalk and Kopf or that some analogies with Vallianatos cannot be drawn. Ratio |
Indeed, in my view, the case of Schalk and Kopf provides an obvious contrast to the circumstances of the present appeal. Ratio |
In that case the enactment of the Registered Partnership Act was the product of evolving societal acceptance of the need to provide some legal recognition of same sex partnerships. Ratio |
Here the inequality between same sex and different sex couples is the creature of Parliament. Ratio |
In one instance (the Registered Partnership Act in the Schalk and Kopf case), one can understand that the timing by the legislature of a measure to reflect the developing changes in attitude should be considered to fall within the governments margin of appreciation. Ratio |
In the case of MSSCA, however, it was Parliament itself that brought about an inequality immediately on the coming into force of the Act, where none had previously existed. Ratio |
The redressing by the legislature of an imbalance which it has come to recognise is one thing; the creation of inequality quite another. Ratio |
To be allowed time to reflect on what should be done when one is considering how to deal with an evolving societal attitude is reasonable and understandable. Ratio |
But to create a situation of inequality and then ask for the indulgence of time - in this case several years - as to how that inequality is to be cured is, to say the least, less obviously deserving of a margin of discretion. Ratio |
In Vallianatos, most of the applicants were in established same sex relationships. PRE |
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