COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE KEENE
| ANTONIO MENDOZA||Appellant|
|- and -|
|AHMAD RAJA GHAIDAN||Respondent|
Mr Jonathan Small (instructed by Hugh Cartwright & Amin) for the Respondent
Mr Rabinder Singh QC (instructed by Bindman & Partners) for the intervener Stonewall
Crown Copyright ©
Buxton LJ :
2(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence. (2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.
3(1) Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him in the dwelling-house at the time of and for the period of two years immediately before his death then, after his death, that person……shall be entitled to an assured tenancy of the dwelling-house by succession.
The House held that although a person who had been in a same-sex relationship with a deceased tenant could qualify as a member of the tenant’s “family” under paragraph 3(1) of the Schedule, the extension made by paragraph 2(2) of that Schedule of the word “spouse” to persons “living with the original tenant as his or her wife or husband” could not include persons in a same-sex relationship. The effect of that ruling is that on the death of a tenant in a same-sex relationship that was in substance though not in form equivalent to a spousal relationship, the tenant’s partner is entitled, as a member of the tenant’s family under paragraph 3(1), to succeed to an assured tenancy of the property; but since he is not a “spouse” he cannot succeed to a statutory tenancy under paragraph 2(1). If the relationship had been a heterosexual one, but in every other respect the same, the partner would be eligible to succeed to the statutory tenancy because of the specific provision in paragraph 2(2).
Article 14: preliminary
i) Do the facts fall within the ambit of one or more of the substantive Convention provisions?
ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparision (“the chosen comparators”) on the other?
iii) Were the chosen comparators in an analogous situation to the complainant’s situation?
iv) If so, did the difference have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?
Article 14: “ambit”
“The enjoyment of the rights and freedoms set forth in this 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.”
An uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14. Jurisprudence has however established that that is not so. As it is put in Grosz, Beatson & Duffy, Human Rights (2000), § C14-10:
“It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for Article 14 to enter into play.”
A recent illustration is to be found in Petrovic v Austria (2001) 33 EHRR 14, a complaint about the refusal of the Austrian authorities to grant to men a parental leave allowance that was available to mothers. The Court held, at §26, that article 8 itself was not infringed since it did not impose any positive obligation on the state to provide the financial assistance in question. Nonetheless, at §§ 27-29:
“this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children. The Court has said on many occasions that Article 14 comes into play whenever ‘the subject-matter of the disadvantage constitutes one of modalities of the exercise of a right guaranteed’, or the measures complained of are ‘linked to the exercise of a right guaranteed’. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14-taken together with Article 8-is applicable.”
We therefore have to apply that wide view of the ambit of article 14 in relation to the two other provisions of the Convention that are relied on in conjunction with article 14.
Ambit: article 8
“the object of the Article is essentially that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.”
That positive obligation on the part of the state, interpreted for instance in Marckx itself as requiring the passing of legislation to permit an unmarried mother to live a normal family life, is amply enough to bring legislation that does affect family life or, in this case, the home within the relevant ambit of article 8.
“I agree with Brooke LJ that the entitlement conferred by…..paragraph 3 of Schedule 1 to the Rent Act falls ‘within the ambit’ of Article 8. [It provides] protection for reasons that [its] terms show to be closely related to family life and/or use of the relevant dwelling-house as a home or residence.”
Mance LJ’s judgment was agreed with in full by Park J. It is not possible to see how there could be any relevant difference in this respect between paragraph 3 of the Schedule and paragraph 2, and none was suggested to us in argument. Paragraph 2 therefore falls “within the ambit” of article 8.
Ambit: article 1 of the First Protocol
Question (iv) in Michalak: objective and reasonable justification
The state’s margin of judgement
“It will be easier for [a ‘discretionary area of judgment’] to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”
The general organisation of housing policy, and in particular of public housing, such as was in issue in Poplar, clearly involves complex questions of social or economic policy that the courts should only enter with trepidation. But I have no hesitation in saying that issues of discrimination, which it is conceded we are concerned with in this case, do have high constitutional importance, and are issues that the courts should not shrink from. In such cases deference has only a minor role to play.
The policy of the Convention: protection of the family?
“The Commission finds that the aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed by Article 8 of the Convention. The aim itself is clearly legitimate. The question remains, however, whether it was justified to protect families but not to give similar protection to other stable relationships. The Commission considers that the family (to which the relationship of heterosexual unmarried couples living together as husband and wife can be assimilated) merits special protection in society and it sees no reason why a High Contracting Power should not afford particular assistance to families. The Commission therefore accepts that the difference in treatment between the applicant and somebody in the same position whose partner had been of the opposite sex can be objectively and reasonably justified.”
Mr Small did not go so far as to say that we were bound by those observations; but he understandably argued that they strongly supported his contention that the terms of the Schedule were objectively justifiable in Convention terms.
“It seems also to be suggested that such a result in this statute undermines the traditional (whether religious or social) concept of marriage and the family. It does nothing of the sort. It merely recognises that, for the purposes of this Act, two people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”
Even therefore if the Commission had been right in S v United Kingdom in thinking that the policy of paragraph 2 is to protect the family, that assumption could not, after Fitzpatrick, be used to support an argument that the exclusion of homosexual couples from the protection of paragraph 2 is necessarily or by definition not discriminatory.
“national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of the opposite sex living together as man and wife than to persons of the same sex in a stable relationship are not contrary to article 14 of the Convention which prohibits, inter alia, discrimination on the ground of sex (see S v United Kingdom [and other Commission decisions in the same sense])”
“It follows that, in the present state of law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationships outside marriage between persons of opposite sex. Consequently, an employer is not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex.”
“the scope of [article 119 of the EEC Treaty], as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the treaty and its legal context. It follows from the considerations set out above that Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in the main proceedings.”
“the Court can only conclude that there was a difference in treatment between the applicant and [the comparator], which was based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14 of the Convention. The Court notes in this regard that the list set out in this provision is of an indicative nature and is not definitive, as is evidenced by the adverb notamment (in English: ‘any ground such as’)……the [national] Appeal Court used a distinction dictated by considerations relating to the applicant’s sexual orientation, a distinction which cannot be tolerated under the Convention.”
I respectfully agree. No other rational reason having been advanced for the exclusion of same-sex relationships from paragraph 2 of the Schedule, the conclusion is inescapable that paragraph 2, as construed by the House of Lords in Fitzpatrick, infringes article 14.
Disposal of the appeal