Secretary of State for Work and Pensions (Appellant) v. M (Respondent)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Secretary of State for Work and Pensions (Appellant) v. M (Respondent)
 UKHL 11
LORD BINGHAM OF CORNHILL
LORD NICHOLLS OF BIRKENHEAD
Article 14 and the claimant's family life
Family life and same sex couples
Article 14 and the claimant's private life
Article 14 and protection of property
LORD WALKER OF GESTINGTHORPE
The respondent's liability under the Child Support Act
The following paragraphs of his judgment explain why that is so. The 1991 Act and the Regulations contain a multiplicity of special definitions: "assessable income," "net income," "exempt income," "disposable income" and "protected income". The non-resident parent's liability depends primarily on his or her assessable income, which is net income less exempt income (para 5 of Schedule 1 to the 1991 Act). There are complex provisions for determining net income (Regulation 7 of and Schedules 1 and 2 to the Regulations) and exempt income, which includes an amount in respect of housing costs (Regulations 9, 14, 15, 16 and 18 of and Schedule 3 to the Regulations). The higher the exempt income the smaller the maintenance assessment will be in respect of any particular level of assessable income. There is also a further mechanism (described by the Child Support Commissioner as a kind of long stop) securing that the non-resident parent's disposable income does not fall below the level of his or her protected income (para 6 of Schedule 1 to the Act and Regulations 11 and 12 of the Regulations).
These definitions are closely similar to, but not identical with, definitions of the same expressions in the Social Security Contributions and Benefits Act 1992, section 137(1).
Schedule 3 of the Regulations also relates to housing costs. Paragraph 4, so far as now relevant, provides as follows:
(1) Her exempt income and her protected income would have taken into account the whole of the household's housing costs (instead of only half of those costs).
(2) Her disposable income (and hence her protected income) would have been calculated on the basis that she had a partner and (as it appears from para 11 of the Child Support Commissioner's decision, though the facts are not clear) that the partner had a child who was a member of the family.
The financial difference for Ms M, in round figures, was as follows (the exact figures are in the agreed statement of facts and issues). Her children's maintenance requirement was assessed at about £105 a week. Her net income was assessed at about £330 a week. From this was deducted exempt income of £180 (including housing costs of about £90) so as to reach an assessable income of about £150 a week. The maintenance payable was assessed at about £47 a week. Had the whole of the housing costs been taken into account, it would have been only about £14 a week. In the event, after Ms M had been successful in her appeal, her ex-husband applied for a discretionary adjustment under section 29F of the 1991 Act (as inserted by the Child Support Act 1995). The effect of this adjustment was to reduce the disparity to a negligible sum. But the parties agreed that this should be disregarded in order to enable the point of principle to be determined on further appeal.
The respondent's Human Rights Act challenge
6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(6) 'An act' includes a failure to act but does not include a failure to
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order."
The course of the litigation
Sedley LJ found it unnecessary to express a definite view on the third approach to article 8, that is respect for private life, but he expressed some doubt about it (paras 50 and 51). He also found it unnecessary (paras 52 to 58) to decide whether article 1 FP was engaged, but here too he expressed considerable doubt about that aspect of Ms M's claim. He concluded that section 3 of the 1998 Act enabled the problem of the definitions to be overcome, not by either of the methods adopted below but (para 86) "by simply disapplyingin effect deletingthe definition of 'unmarried couple' in regulation 1(2)."
(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
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).
The first issue: article 8 case law
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.
The case was not within the ambit of article 8 at all, and therefore the claim under article 14 also failed.
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):
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.
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.
Nevertheless the ECHR did not extend the right to respect for private life so far as to cover personal autonomy over assisted suicide.
The claim succeeded. As to the margin of appreciation the ECHR stated (paras 40-41):
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.
The ban was disproportionate and the claim under article 14 in conjunction with article 8 (respect for private life) was successful.
The first issue: conclusions on family life and private life
The first issue: article 1FP
Sedley LJ added,
The second issue
That sequence can be seen in our domestic law: the main steps being the Sexual Offences Act 1967, the beginning of specific anti-discrimination legislation in the 1970s (though with some back-sliding over clause 28), and now sweeping changes in family law. The United Kingdom may have been following the lead of other states within the Council of Europe, but it has not been so far behind as to go outside its margin of appreciation, except in relation to transsexuals.
The third issue
BARONESS HALE OF RICHMOND
In that case, there was a legitimate aim, so the point at issue was the application of the margin of appreciation to the question of proportionality. In this case, no-one has suggested a legitimate aim. No one has suggested, for example, that the religious or moral views of sections of the community might constitute such a justification (as opposed to an explanation). This is much closer to the position in Karner v Austria (2003) 38 EHRR 528, where the court was unanimous in finding a violation of article 14, than it is to the position in Frette v France (2004) 38 EHRR 438,decided more than a year earlier, where the court was so narrowly divided.
Regulation 1(2) defines a "family" as follows:
(b) a married or unmarried couple and any child or children living with them for whom at least one member of that couple has day to day care
(a) in relation to a member of a married or unmarried couple who are living together, the other member of that couple;
'married couple' means a man and a woman who are married to each other and are members of the same household.
'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife. "
Mrs M's case
Mrs M's relationship with her children and former partner
Mrs M's relationship with her new same-sex partner
Lord Steyn's reasoning was agreed by all other members of the House (save in the case of my noble and learned friend, Baroness Hale of Richmond, on the one question whether there was on the facts an interference with private life under article 8(1)). Baroness Hale also said in para 78:
It is relevant that it is in the first instance for the domestic courts of this country to consider and, so far as possible, give effect to Convention rights (or, if this is not possible in the case of primary legislation, to make a declaration of incompatibility).
The Commission also rejected complaints of interference with her private life and her home. In Fitzpatrick v. Sterling Housing Association Ltd  1 AC 27, decided on 28 October 1999, Lords Slynn of Hadley, Clyde and Hobhouse of Woodborough referred to this authority as indicating the current Strasbourg position, but Lord Slynn observed that the law was still "in an early stage of development" and "attitudes may change as to what is acceptable throughout Europe" (p.40A-B), while Lord Clyde referred to the "developing" Strasbourg jurisprudence (p.54A). The ruling in S v. United Kingdom regarding interference with the home must on any view now be seen in the light of later Strasbourg jurisprudence to contrary effect: see Karner v. Austria (2004) 38 EHRR 24, decided on 24 July 2003, with regard to a claim to succeed to a tenancy held by a same sex partner who died in 1994.
Although the Commission's decision related to a refusal to pay a survivor's pension following a death in 1997, the loss of pension was presumably continuing. The decision thus re-affirms both that homosexual relations did "not fall within the scope of the right to respect for family life protected by Article 8 of the Convention" and that Contracting States "still" had a wide margin of appreciation at a time very shortly before the period relevant to the present appeal.
In support of this view, it might be said that conceptions of "family life" may differ in different cultural, traditional and religious environments, and the common law authorities which I cite in paragraphs 139-140 below certainly show an evolution within the United Kingdom.
Domestic developments in the concept of "family life"
Further Strasbourg and domestic case-law
But the Court earlier also, at para 60, observed that, even if there had been no significant scientific developments regarding the aetiology of transsexualism:
Respect for Mrs M's private life
Article 1 of Protocol No. 1 and article 14