AS TO THE ADMISSIBILITY OF
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 23 June 2009 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 9 October 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted jointly by the Fédération internationale des Ligues des Droits de l’Homme (FIDH), the International Commission of Jurists (ICJ), the AIRE Centre and the European Region of the International Lesbian and Gay Association (ILGA–Europe),
Having deliberated, decides as follows:
The applicant, Mr M. W., is a British national who was born in 1958. He was represented before the Court by Mr J. Welch, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is homosexual. He lived with his partner, M., for twenty three years until the latter’s death on 10 April 2001. From the late 1980s onwards, they resided in jointly-owned properties. The applicant states that he and his partner were financially interdependent, pooled their income and that each had designated the other as his heir. Their relationship was accepted by family and friends, and, according to the applicant, their degree of mutual commitment was such that had they been a heterosexual couple they would have married.
Around two weeks after M’s death, the applicant asked a social worker whether he could claim Bereavement Payment (a lump sum currently worth GBP 2,000). He was advised that the benefit was only payable to the survivor of a married couple, and so he did not formally claim it.
The applicant complained of his ineligibility for bereavement benefits to his Member of Parliament (“MP”). In a letter dated 17 July 2001, the Chief Executive of the Benefits Agency confirmed to the MP that:
“... entitlement to bereavement benefits is based on legal marriage between couples at the time of death”.
The applicant also wrote to the Prime Minister. This letter was forwarded to the Department of Work and Pensions, which replied on 21 September 2001 stating that:
“Marriage is a cornerstone of the contributory benefits system and all rights to contributory benefits derived from another person’s contributions are based on the concept of legal marriage. Changing or widening the definition of marriage would have far reaching implications and could not be done in isolation.”
B. Relevant domestic law
The conditions for the receipt of Bereavement Payments are contained in Section 36 of the Social Security Contributions and Benefits Act 1992, as amended with effect from 9 April 2001 by the Welfare Reform and Pensions Act 1999. The relevant parts of this provision read as follows:
“(1) A person whose spouse dies ...shall be entitled to a bereavement payment if – (a) either than person was under pensionable age at the time when the spouse died or the spouse was then not entitled to a Category A retirement pension...; and
(b) the spouse satisfied the contribution condition for a bereavement payment...
(2) A bereavement payment shall not be payable to a person if that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse’s death.”
Under the Social Security (Claims and Payments) Regulations 1987, a claim for Bereavement Payment must be made within three months from the date of the spouse’s death (Regulation 19).
Section 4 of the Human Rights Act 1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
The Civil Partnership Act 2004, which took effect on 5 December 2005, broadened eligibility for Bereavement Payment. It amended Section 36(1) of the 1992 Act so as to include persons who have entered into a civil partnership.
The applicant complained under Article 14 of the Convention taken in conjunction with Article 8 and Article 1 of Protocol No. 1 that, as a survivor of a same-sex couple who had had no means to achieve formal recognition of their relationship, he had been denied a benefit available to a survivor of a married couple.
The applicant argued that the exclusion of same-sex partners from Bereavement Payment disclosed a breach of Article 14 of the Convention in conjunction with Article 8 and Article 1 of Protocol No. 1.
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The relevant part of Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”
The relevant part of Article 1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. “
The Government submitted that the applicant had not exhausted domestic remedies, having failed to seek a declaration of incompatibility, under Section 4 of the Human Rights Act, of Section 36(2) of the 1992 Act. As to the substance of the complaint, the Government contended that, in light of the Court’s judgment in Burden v. the United Kingdom [GC], no. 13378/05, 29 April 2008, the applicant and his partner had not been in a situation analogous to that of a married couple for the purpose of Bereavement Payment and therefore he could not complain of discrimination. The Government therefore agreed with the approach taken by the Court in the case of Courten v. the United Kingdom (no. 4479/06, decision of 4 November 2008), which raised essentially the same issue as the present case. Since the applicant in this case was bereaved almost 4 years earlier than Mr Courten, the reasoning employed by the Court in the latter’s case applied a fortiori.
The applicant argued that domestic law did not afford him an effective remedy, and referred to the Court’s decision on this point in Burden (cited above, §§ 40-44). He contended that his relationship with M. should not be assimilated to that of an unmarried heterosexual couple, since, unlike the latter, it had been legally impossible for him and his partner to gain formal legal recognition of their relationship. Rather, the true comparison in the context of bereavement was with the survivor of a married couple. He considered it implicit in the Burden judgment that had it still been impossible for same-sex partners to enter into a civil partnership their position would nonetheless have been recognised as analogous to that of a married couple. To deny the analogy gave rise to the curious situation that same-sex couples would not be able to complain of discrimination under Article 14 until the State took steps to grant them equality of treatment with married couples by formally recognising relationships. For this reason the Courten decision should not be followed. Relying on the Court’s judgment in Thlimmenos v. Greece ([GC], no. 34369/97, § 44, ECHR 2000 IV), the applicant argued that it would be discriminatory to treat him in the same manner as the survivor of an unmarried heterosexual couple, given the significant differences between these two situations. The Government was therefore under a duty to enable him to receive the benefit on some other basis. The Civil Partnership Act showed that the civil aspect of marriage, with its wide array of legal rights and obligations, could very well apply to same-sex couples. The evolving international consensus described by the third party interveners (infra.) showed that the interest of States in promoting long-term stable relationships and family life could be achieved just as well by extending the relevant benefits and privileges to permanent and stable same-sex relationships.
The third party interveners (FIDH, ICJ, the AIRE Centre, and ILGA–Europe) argued that the applicant was the victim of indirect discrimination based on his sexual orientation. The right to equal treatment required that the State find alternative means to allow the survivor of a same-sex couple to receive Bereavement Payment. The ineligibility of same-sex couples had to be shown to be necessary to achieve the State’s objective of supporting marriage, and this had not been demonstrated in the present case. There was a clear trend in Council of Europe States and elsewhere in the world, including certain international organisations, towards formal recognition of same-sex couples and giving them access to rights and benefits granted to married couples. The third party interveners referred to several examples of courts in the United States and South Africa ruling that it was discriminatory to withhold such benefits from unmarried same-sex couples. Lastly, they argued that the adoption of the Civil Partnership Act should be seen as confirming that the previous situation, in which same-sex couples had no means of achieving official recognition of their relationship, was discriminatory.
On the question of the exhaustion of domestic remedies the Court recalls the Grand Chamber’s position in the Burden judgment that, while it cannot be excluded that at some time in the future the practice of giving effect to the national courts’ declarations of incompatibility may be so certain as to indicate that Section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation, such a situation had not yet come about. (ibid., §§ 43-44). There is no evidence before the Court to indicate that that stage has been reached. It follows that the application cannot be declared inadmissible for non-exhaustion.
Concerning the substance of the application, the Court recalls that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations (Burden, cited above, § 60). It has continuously held that marriage remains an institution that is widely accepted as conferring a particular status on those who enter into it, the right to marry being explicitly protected by Article 12 of the Convention (ibid., § 63).
Contrary to the submission of the applicant, it is not implicit in the Burden judgment that, had there been no Civil Partnership Act, same-sex relationships would still have been equated with marital relationships. In its judgment, the Grand Chamber identified the fundamental difference between personal relationships that are based on a legally binding agreement giving rise to certain rights and duties for the parties and those that are not (ibid. § 65). Because that judgment was delivered after the entry into force of the Civil Partnership Act, the status of couples who had availed of the possibility of entering into a civil partnership could likewise be distinguished from informal personal relationships, however permanent and supportive. The relationship the applicant had with his partner came within the latter category, and so his situation is to be distinguished from that of a surviving spouse (Bereavement Payment having been made available to widowers on the same basis as widows with effect from 9 April 2001 – see Willis v. United Kingdom, no. 36042/97, ECHR 2002 IV). While the applicant has cited the Court’s judgment in the Thlimmenos case, the Court would observe that the situation here is different. It cannot be said that the law in force at the time failed to treat differently persons in significantly different situations. Rather, it excluded all persons who failed to meet a criterion that the Court deemed valid in Burden.
The applicant’s complaint that it was impossible during his partner’s lifetime to gain formal recognition of their commitment to one another is in effect criticism of the length of time it took the United Kingdom to enact the necessary legislation. However, as stated in the Courten decision, the Government cannot be criticised for not having introduced the Civil Partnership Act at an earlier date that would have entitled the applicant to claim Bereavement Payment. The comparative material before the Court is not such as to suggest that at the relevant point in time (10 April 2001) there was sufficient consensus among the Contracting Parties to the Convention on the formal recognition of same-sex relationships that would have significantly narrowed the United Kingdom’s margin of appreciation in this respect. Nor can the enactment of the Civil Partnership Act be taken as an admission by the domestic authorities that the non-recognition of same-sex couples, and their consequent exclusion from many rights and benefits available to married couples, was incompatible with the Convention. Instead, by acting as they did and when they did, the United Kingdom authorities remained within their margin of appreciation. Moreover, the comprehensive manner in which the Act ensures equal entitlements for same-sex couples who enter into a civil partnership means that, although it was not in the vanguard, the United Kingdom is certainly part of the emerging European consensus described by the third party interveners.
In light of the above, the Court concludes that the applicant cannot claim, for the purposes of Article 14, that, at the material time, he was in an analogous situation to a bereaved spouse. His complaint must therefore be rejected as manifestly ill-founded.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki