text stringlengths 5 5.67k |
|---|
In November 2008 the Civil Unions Law came into force in Greece. PRE |
It created civil unions as an official form of partnership other than marriage. PRE |
Such unions could only be entered by two adults of different sex. PRE |
The applicants claimed that the failure to make civil unions available to same sex couples breached their rights under article 14, taken in conjunction with article 8. PRE |
The government claimed that the restriction of civil unions to different sex couples was to enhance the legal protection of children born outside marriage and indirectly to strengthen the institution of marriage. PRE |
At para 85 of its judgment the court said: In cases in which the margin of appreciation afforded to 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 the measure chosen to be suitable in principle fo... |
It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people - in this instance persons living in a homosexual relationship PRE |
Applying that approach to the present case, it is for the government and Parliament to show that it was necessary, in order to achieve the aim of having time to consider what to do about the difference in treatment between same sex and different sex couples brought about by MSSCA, to exclude different sex couples from ... |
One can understand why the government might have wished to maintain the status quo while considering various options. Ratio |
But that is a far cry from saying that it was necessary to exclude different sex couples from the institution of civil partnership. Ratio |
It appears to me, therefore, that some, albeit not perfect, analogy can be drawn between Vallianatos and the present case. Ratio |
In Vallianatos same sex couples were excluded from civil unions. Ratio |
In this instance, different sex couples are being denied the range of choice available to same sex couples. Ratio |
In the present case, of course, as the respondent has been at pains to point out, the inequality of treatment arose because of the enlarging of options for same sex couples. Ratio |
It is also observed that the appellants do not suggest that before the coming into force of MSSCA, there was an interference with their article 8 rights, when read together with article 14. Ratio |
But this is nothing to the point. Ratio |
The government and Parliament must be taken to have realised that, when MSSCA came into force, an inequality of treatment would inevitably arise. Ratio |
For the reasons given earlier, one must assume that they did not recognise that that inequality would engage article 8. Ratio |
But, again, that is not relevant. Ratio |
What must now be shown is that it was necessary to exclude different sex couples from civil partnerships for an indefinite period, while inquiries, consultations and surveys were conducted and a decision based on these could be made. Ratio |
I consider that that necessity has not been established. Ratio |
Legitimate aim Ratio |
The four-stage test designed to establish whether an interference with a qualified Convention right can be justified is now well-established. Ratio |
The test and its four stages were conveniently summarised by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45. Ratio |
They are (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the righ... |
The legitimate aim articulated by the respondent in the present appeal is the need to have time to assemble sufficient information to allow a confident decision to be made about the future of civil partnerships. Ratio |
But, as Lord Bingham stated in para 68 of A v Secretary of State for the Home Department (para 20.2 above), [w]hat has to be justified is not the measure in issue but the difference in treatment between one person or group and another. Ratio |
To be legitimate, therefore, the aim must address the perpetration of the unequal treatment, or, as Ms Monaghan put it, the aim must be intrinsically linked to the discriminatory treatment. Ratio |
In this case it does not and is not. Ratio |
The respondent does not seek to justify the difference in treatment between same sex and different sex couples. Ratio |
To the contrary, it accepts that that difference cannot be justified. Ratio |
What it seeks is tolerance of the discrimination while it sorts out how to deal with it. Ratio |
That cannot be characterised as a legitimate aim. Ratio |
In reaching its conclusion that a wait and see (or, as Beatson LJ called it, a wait and evaluate) policy amounted to a legitimate aim, the Court of Appeal relied on the decision of ECtHR in Walden v Liechtenstein (Application No 33916/96) (unreported, 16 March 2000). Ratio |
In that case the applicant was a pensioner who complained that calculation of the joint pension due to himself and his wife by reference only to his own contribution record discriminated unfairly against couples where the wife had a better contribution record than the husband. Ratio |
A new law, correcting this imbalance was introduced on 1 January 1997. Ratio |
(In May 1996 the State (Constitutional) Court had found the law to be unconstitutional but refused to set it aside as it would have been disruptive and contrary to good administration.) Ratio |
The applicant complained that, until the new law had come into force, his Convention rights had been violated. Ratio |
The Strasbourg court agreed with the domestic court that the previous law had infringed the applicants rights under article 14 taken with Article 1 of Protocol 1, but that the refusal to quash the discriminatory law was equivalent to a stay. Ratio |
The temporary preservation of the offending law served the legitimate aim of maintaining legal certainty, and the period of just over six months to rectify the position was proportionate. Ratio |
This decision was described by Lord Hoffmann in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681 as puzzling - para 62. Ratio |
Hooper concerned benefits under the Social Security Contributions and Benefits Act 1992 which were payable to widows, but not to widowers. Ratio |
The Welfare Reform and Pensions Act 1999 amended the 1992 Act so as to provide survivors benefits payable to both sexes on the death of their spouses with effect from 9 April 2001, whilst preserving existing rights. Ratio |
The widower claimants alleged a breach of article 14 taken with article 8 for the period between the coming into force of the Human Rights Act 1998 in October 2000 and the coming into effect of the 1999 Act during which period they did not receive survivors benefits. Ratio |
Although the claimants appeal was dismissed on other grounds, the House of Lords rejected the argument based on the Walden decision, Lord Hoffmann observing at para 62: I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its j... |
Up to the point at which that time is exceeded, there is no violation of a Convention right. Ratio |
But there is no suggestion in the report of Walden v Liechtenstein that the discrimination between married couples was ever justified and I find it hard to see why there was no violation of Convention rights as long as the old law remained in place. Ratio |
It is clear from this passage that Lord Hoffmann rejected the notion that an otherwise unjustified discriminatory measure can be justified by a need for a period to change the law. Ratio |
The present case does not involve a form of discrimination that was historically justified but has gradually lost its justification. Ratio |
The exact reverse is the case here. Ratio |
A new form of discrimination was introduced by the coming into force of MSSCA. Ratio |
There was, therefore, in the words of Lord Hoffmann, no reason to conclude that this discrimination was ever justified. Ratio |
Rational connection Ratio |
If the aim of the government and Parliament could properly be described as legitimate, I accept that there would be a rational connection between the aim and the delay in addressing the discrimination. Ratio |
Less intrusive means Ratio |
It is accepted by all that, before MSSCA came into force, there was no discrimination against same sex or different sex groups. Ratio |
Since Parliament and the government are to be taken as having realised that discrimination would begin with the Act taking effect, it seems to me that at least two options were available. Ratio |
First, its introduction could have been deferred until the researches which are now deemed necessary had been conducted. Ratio |
Secondly, the government could have extended the institution of civil partnerships to different sex couples until those researches had been completed. Ratio |
(A third, but admittedly less palatable, option would have been to suspend the availability of civil partnerships to same sex couples, while the inquiries were carried out.) Ratio |
Each of these options would have allowed the aim to be pursued with less, indeed no, discriminatory impact. Ratio |
In the Court of Appeal, Briggs LJ suggested that the second of the options outlined above was a practicable impossibility but it is not clear on what material this conclusion was based. Ratio |
One can certainly recognise that it would not be a particularly attractive proposition to introduce civil partnerships for different sex couples as an interim measure, if ultimately, they were to be abolished altogether but that does not make that course impossible as a matter of practicability. Ratio |
I should make it unequivocally clear that the government had to eliminate the inequality of treatment immediately. Ratio |
This could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples. Ratio |
If the government had chosen one of these options, it might have been theoretically possible to then assemble information which could have influenced its longer term decision as to what to do with the institution of civil partnerships. Ratio |
But this does not derogate from the central finding that taking time to evaluate whether to abolish or extend could never amount to a legitimate aim for the continuance of the discrimination. Ratio |
The legitimate aim must be connected to the justification for discrimination and, plainly, time for evaluation does not sound on that. Ratio |
It cannot be a legitimate aim for continuing to discriminate. Ratio |
Since the less intrusive means stage of the proportionality exercise did not feature to any significant extent in oral argument and as it is unnecessary for me to reach a final view in order to dispose of the appeal, I say nothing more on the subject. Ratio |
A fair balance Ratio |
If the interference with the appellants rights could be regarded as being in pursuit of a legitimate aim, I would have no hesitation in concluding that a fair balance between their rights and the interests of the community has not been struck. Ratio |
The point at which the now admitted discrimination will come to an end is still not in sight. Ratio |
The interests of the community in denying those different sex couples who have a genuine objection to being married the opportunity to enter a civil partnership are unspecified and not easy to envisage. Ratio |
In contrast, the denial of those rights for an indefinite period may have far-reaching consequences for those who wish to avail of them - and who are entitled to assert them - now. Ratio |
As Briggs LJ observed in the Court of Appeal, some couples in the appellants position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. Ratio |
Moreover, undertaking research with people who are current civil partners to understand their views on civil partnership and marriage, and their future intentions and preferences - (command paper para 20) is, at best, of dubious relevance to the question of whether the continuing discrimination against different sex co... |
Given that further inquiries are said to be necessary in order to decide how to eliminate the unequal treatment suffered by different sex couples, the governments investigations should surely have been geared to determining the extent of demand for civil partnerships among those of different genders who had a settled a... |
Institutional competence Ratio |
This court was encouraged to refrain from making a declaration of incompatibility because, it was said, the decision not to take action about extending or abolishing civil partnerships was one which fell squarely within the field of sensitive social policy which the democratically-elected legislature was pre- eminently... |
That argument has significantly less force if the decision not to take action at present does not pursue a legitimate aim but it must nevertheless be considered for what principled basis it may have. Ratio |
The starting point is that the court is not obliged to make a declaration of incompatibility when it finds that a particular provision is not compatible with a Convention right. Ratio |
Section 4(2) of HRA provides that if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. Ratio |
The provision clearly contemplates that there will be circumstances in which the court considers that an item of primary legislation is not compatible with a Convention right but that it is not appropriate to have recourse to the section 4(2) power. Ratio |
The circumstances in which such self-restraint should be exercised have not been comprehensively catalogued. Ratio |
This is understandable. Ratio |
Different considerations may favour reticence. Ratio |
Others may call for a declaration to be made. Ratio |
An obvious example where reticence was considered appropriate was the case of R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657 where what was at stake was the compatibility of section 2 of the Suicide Act 1961 (which makes encouraging or assisting a suicide a criminal offence) with arti... |
At the time of this courts decision, Parliament was due to debate the issues arising in the appeal in the context of the Assisted Dying Bill introduced by Lord Falconer into the House of Lords on 5 June 2014. PRE |
It was argued that the court should defer expressing any final view of its own regarding the compatibility of section 2 with article 8 until Parliament had first considered that Bill. PRE |
A clear majority of the nine-member panel concluded that the issue was one that lay within the institutional competence of the Court, but, of that majority, only two considered that a declaration of incompatibility should be made. PRE |
The others decided that, as Parliament was on the point of considering Lord Falconers Bill it would be premature for the court to consider making a declaration of incompatibility. PRE |
Parliament should first have the opportunity to consider the issues for itself. PRE |
I do not consider that Nicklinson sets a precedent for reticence in this case. PRE |
The amendment to Mr Loughtons Bill which the government has agreed does no more than formalise the consultation process to which it was already committed. PRE |
It does not herald any imminent change in the law to remove the admitted inequality of treatment. PRE |
Even if it did, this would not constitute an inevitable contraindication to a declaration of incompatibility. PRE |
In Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 it was said that where the court finds an incompatibility, it should formally record that the present state of statute law is incompatible with the Convention - para 55. PRE |
Observations by Lord Hobhouse at para 79 are especially pertinent: The Government cannot yet give any assurance about the introduction of compliant legislation. PRE |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.