Secretary of State for Work & Pensions v M [2004] EWCA Civ 1343

Case No C3/2003/2719 AND C3/2004/0029

[2004] EWCA Civ 1343

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY COMMISSION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 15 October 2004

Before

LORD JUSTICE KENNEDY

LORD JUSTICE SEDLEY

LORD JUSTICE NEUBERGER

Between

1. SECRETARY OF STATE FOR WORK & PENSIONSAppellant

‘M’Respondent

2. CYNTHIA LANGLEYRespondent

BRADFORD METROPOLITAN DISTRICT COUNCIL & SECRETARY OF STATE FOR WORK & PENSIONSRespondent

1. SECRETARY OF STATE FOR WORK & PENSIONS-v-‘M’and 2. CYNTHIA LANGLEY-v-BRADFORD METROPOLITAN DISTRICT COUNCIL & SECRETARY OF STATE FOR WORK & PENSIONS

(Transcript of the Handed Down Judgment of

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Karon Monaghan and Ulele Burnham (instructed by Liberty) for‘M’

Richard Drabble QC and Rachel Perez (instructed by Stachiw Bashir Green) for Ms Langley

Philip Sales and Daniel Kolinsky (instructed by Solicitor for Department of Work and Pensions) for the Secretary of State

Kate Olley for Bradford MDC

Judgment

[1]I have asked Lord Justice Sedley to deliver the first judgment.

[2]Since we heard submissions in relation to these appeals we have received from the solicitors acting for the appellant in the second case a request that her name be given in full. Thus far she has been referred to only as L. We accede to that request.

[3]M is a mother of two children. They live with their father but she shares with him the responsibility for their maintenance. She herself has since 1998 lived in a same-sex relationship, pooling incomes and sharing outgoings with her partner.

[4]Ms. Langley is a woman who, following the break-up of a relationship with a man, remained in what had been their shared home and paid rent to him.

[5]M’s case arises out of the calculation of her child support liability. Ms. Langley’s case arises out of her claim for housing benefit. Because they raised related issues they were heard together by Mr Commissioner Jacobs. His decision against Ms. Langley, upholding that of the Leeds appeal tribunal, was given on 22 September 2003. His decision in favour of M, upholding that of the Middlesbrough appeal tribunal, was given on 1 October 2003.

[6]In M’s case the issue is this: because the prescribed criteria for reducing the liability of absent parents for child maintenance on account of their current housing costs are confined to members of heterosexual couples, her liability is greater than if she were now living in a heterosexual relationship. She has successfully sought resolution of the issue under the Human Rights Act 1998 by having the material regulations treated as applying to her (and by logical extension to members of other same-sex partnerships) as they do to members of heterosexual partnerships and marriages.

[7]In Ms. Langley’s case the issue is this: the local authority has decided that she is not entitled to housing benefit because she is paying rent to a former cohabiting partner of the opposite sex when she would not be disentitled to benefit had it been a same-sex relationship. In this argument she has failed before the Commissioner on the ground that she cannot show herself and her chosen comparator to be in a relevantly similar situation.

[8]It is helpful that we have both cases before us, not only because they raise a common issue from widely divergent standpoints but because the reasoning in the one case offers certain challenges to the reasoning in the other. The legislative schemes Child support

The legislative schemes

[9]The broad effect of the material provisions is to allocate the financial responsibility of separated parents for the maintenance of their children by pooling the absent parent’s income and outgoings with those of his or her new partner if, but only if, that partner is of the opposite sex. For same-sex couples this means that the one who is an absent parent is assessed as if living alone, with generally disadvantageous consequences.

[10]By s.11 of the Child Support Act 1991, child maintenance is to be calculated in accordance with Schedule 1, which sets out the elements of income and outgoings to be taken into account. These include the following sub-paragraphs: 6(4) The amount which is to be taken for the purposes of this paragraph as an absent parent’s disposable income shall be calculated, or estimated, in accordance with regulations made by the Secretary of State. 6(5) Regulations made under sub-paragraph (4) may, in particular, provide that, in such circumstances and to such extent as may be prescribed – …………. (b) where the absent parent is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married), income of that other adult is to be treated as the absent parent’s income for the purposes of calculating his disposable income.

[11]In the exercise of these powers the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 make the following provision: 1(2) In these Regulations unless the context otherwise requires – …………… ‘family’ means – (a) 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 …………. ‘partner’ means (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.

[12]It is material to the Secretary of State’s case that the last of these definitions reproduces that contained in the legislation governing social security benefits: see the Social Security Contributions and Benefits Act 1992, s.137. It is also material that the same definitions are used throughout the child support scheme to ascertain not only the amount of housing costs and protected income but also whose income is to be the basis of the calculation of disposable income.

[13]Within the 1992 Regulations, Sch.3 contains two provisions which are central to this case: 4(1) Subject to the following provisions of this paragraph the housing costs referred to in this Schedule shall be included as housing costs only where – ……….. (b) the parent or, if he is one of a family, he or a member of his family is responsible for those costs; and (c) the liability to meet those costs is to a person other than a member of the same household. However, the Regulations themselves provide: 15(3) Where a parent has eligible housing costs and another person who is not a member of his family is also liable to make payments in respect of the home, the amount of the parent’s housing costs shall be his share of those costs.

[14]Regulation 11 makes detailed provision for the computation of protected income. It is sufficient for present purposes to reproduce the Commissioner’s summary of its effect “Its purpose is, put crudely, to ensure that the parent’s family has enough to live on after child support maintenance has been paid. It operates as a kind of longstop to the formula. Its application is more favourable for a parent who is a member of a family.” This is because Regulation 11(1)(a) depends on the absent parent having a partner, and 11(1)(g) on a child being a member of the absent parent’s family – ‘partner’ and ‘family’ being, as has been seen, confined by Regulation 1(2) to heterosexual relationships.

[15]The process of assessment involves four stages.

[16]The first stage is the calculation of each parent’s assessable income: here the effect of regulation 15(3) and the definition of ‘family’ is that in the computation of exempt income the non-resident parent’s housing costs take no account of those of her current partner where the partner is of the same sex. To the extent that her exempt income falls, her assessable income, and consequently her maintenance contribution, rises.

[17]The second stage is then to assess the maintenance requirement and the non-resident parent’s share of it. The third stage is to assess any additional element; but there was none in M’s case. The fourth stage is to match the income found to be available to the non-resident parent’s family against the protected income, a sum designed to ensure that she and any second family retain enough for their own needs. In this process a non-resident parent who has a partner of the opposite sex, and so ranks as a member of a family, can expect to do better than one whose partner is of the same sex.

[18]There is, however, provision for the making of discretionary departure directions which may mitigate the consequent differential. In the present case, we are told, the initial disparity affecting M, was of the order of £33:00 but has been reduced by this means to about £1:00. No reliance is placed on this, however, by the Secretary of State in relation to the issue of principle.

Housing benefit

[19]The effect of the present scheme is that former heterosexual partners of the lessor are excluded from obtaining housing benefit, where former same-sex partners of the lessor are not.

[20]Regulation 7(1) of the Housing Benefit (General) Regulations 1987 provides: “7(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where -” … (c) his liability under the agreement is - (i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners.” (c) his liability under the agreement is - (i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners.” 21. 'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife …"

[21]The Secretary of States lays stress on the fact that these provisions, in contrast to those affecting M, are designed to prevent abuse of the housing benefit system. They are made under a power contained in s.137(2)(i) of the 1992 Act to make regulations for treating any person who is liable to make payments in respect of a dwelling as if he were not so liable.

The proceedings so far

[22]In M’s case Mr Commissioner Jacobs upheld the decision of the Middlesbrough appeal tribunal (J.A.Priest) that M’s housing costs, for the purposes of both her exempt income and her protected income, were to be calculated on the basis that her same-sex partner was a member of her family and (in relation to protected income) her partner; and that the first basis was also to be adopted for the calculation of the household’s disposable income. Both tribunals reached their conclusion by reasoning that by virtue of the Human Rights Act 1998 the art.14 right to non-discrimination in respect of enjoyment of other Convention rights – here the art 8 right to respect for private and family life - without unjustifiable discrimination would be violated unless the legislation were so read as to include same-sex couples in the concept of “family” and “partner”. They differed on the means by which this should be done. The Secretary of State appeals against the Commissioner’s decision.

[23]In Ms. Langley’s case the same Commissioner upheld the refusal of the Leeds appeal tribunal (J. Harrow) under the Human Rights Act 1998 to disapply the “ex-partner landlord” rule, holding that there was no true comparability between Ms. Langley and a same-sex ex-partner in terms of the potential abuse at which the rule was directed. Ms. Langley appeals against the Commissioner’s decision. A very late respondent’s notice was put in by the Secretary of State without, in the event, formal objection, contending that the Commissioner was also right because neither art 8 nor art 14 was on the facts engaged. While, as Ms. Langley’s solicitors pointed out in correspondence, central government enjoys no special dispensation from the time limits in the CPR, there would have been little point in our deciding the case without considering these questions, and Richard Drabble QC, for Ms. Langley, sensibly did not press the objection.

The issues

[24]In M’s case Philip Sales, for the Secretary of State, submits that the Commissioner and appeal tribunal have erred for the following reasons. First, the maintenance assessment scheme does not come within the ambit of art 8, in particular because same-sex relationships do not come within the Convention concept of family life. Secondly, even if art 8 is engaged, there is no sufficient analogy between same-sex and opposite-sex couples for the purposes of the scheme to attract the protection of art 14. Thirdly, if both these propositions are wrong, the difference in treatment is justified by the need to introduce reform methodically, and so does not offend against art 14. Alternatively, if this does not afford justification, it affords a reason for confining relief to a declaration, leaving reform to government.

[25]Karon Monaghan, for M, contends that not only art 8 but art 1 of the First Protocol is engaged by the present case. She starts from the proposition that the scheme overtly discriminates between same-sex and opposite-sex couples and that the discrimination adversely affects the child maintenance liability of M as an absent parent now in a same-sex relationship. This much is not in dispute. She goes on to argue that the scheme comes within the ambit of both art 8 and art 1P1 because it impacts adversely on M’s (and her child’s) family life and on her private life and her possessions, and that it does so on a ground – sexual orientation – which is today proscribed by virtue of art 14. As to justification, Ms Monaghan says that no legitimate aim has ever been advanced by the Secretary of State, and that in any event the measure is disproportionate. She also disputes that the need for time to make reforms can amount to justification or to a ground for withholding relief.

[26]This last issue opens the door on a major and difficult area of dispute, on which little case-law exists. Both in M’s case and in Ms. Langley’s case Mr Sales has contended that, if the material regulations do offend against the claimants’ Convention rights, the proper recourse is under s.6 rather than s.3 of the Human Rights Act. In Ms. Langley’s case, for reasons which are not entirely disinterested, Mr Drabble has made common cause with Mr Sales (but relied also on section 3(1) and 3(2)(c) of that Act in the alternative), though Mr Sales has not embraced the proffered support in its entirety.

[27]For the rest, it is common ground in Ms. Langley’s case that the abuse provision in the housing benefit scheme shuts out former heterosexual partners but not former same-sex partners. Mr Drabble submits that this affects private and/or family life and thus comes within the ambit of art 8. Mr Sales contests that propositions; but if he is wrong, he adopts the single ground on which the Commissioner decided against Ms. Langley, namely the want of a true comparison. If he is also wrong about this, he contends that the discrimination is justified by the need both for a bright-line rule and for methodical reform.

[28]Ms. Langley’s case involves a further potentially important question: assuming that unjustifiable discrimination is established, what is the correct remedy? Is it to strike down the material provision, which would make Ms. Langley eligible for housing benefit, or is it to read it so that it includes former same-sex partners, which would not have the effect desired by Ms. Langley? The choice between levelling up and levelling down can be highly problematical. It also raises issues about the appropriate mechanisms and forms of relief under the Human Rights Act which have been debated before us.

[29]Although, as can be seen, the two cases intersect at a number of points, there is a risk of confusion if they are analysed or decided together. After looking at the relevant general law I will deal first with M’s case; then separately with Ms. Langley’s case, and I will consider at the end the questions of principle affecting remedy.

The general law

[30]The Human Rights Act 1998 provides: 3.(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section – (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. 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.

[31]The effect of s.1 of the Human Rights Act is that all the rights in issue in the present appeals are Convention rights. The potential significance of s.6(6) is its implication that it may be unlawful for a minister to fail to remedy incompatible secondary legislation for which he or she is responsible; but nothing in the present cases turns on this.

[32]The material Convention rights are these: Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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 protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 Prohibition of discrimination 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. FIRST PROTOCOL Article 1 Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

[33]In Ghaidan v Mendoza

[2004] 3 All ER 411

, Baroness Hale said:

“[133]. It is common ground that five questions arise in an art 14 inquiry, based on the approach of Brooke LJ in Wandsworth London BC v Michalak [2002] EWCA Civ 271 at [20], [2002] 4 ER 1136 at [20], [2003] 1 WLR 617 as amplified in R (on the application of Carson) v Secretary of Sate for Work and Pensions [2002] EWHC 978 (Admin) at [52], [2002] 3 All ER 994 at [52] affirmed [2003] EWCA Civ 797, [2003] 3 All ER 577. The original four questions were: (i) Do the facts fall within the ambit of one or more of the convention rights? (ii) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (iii) Were those others in an analogous situation? (iv) Was the difference in treatment objectively justifiable, ie did it have a legitimate aim and bear a reasonable relationship of proportionality to that aim? [134]. The additional question is whether the difference in treatment is based on one or more of the grounds proscribed – whether expressly or by inference – in art 14. The appellant argued that that question should be asked after question (iv), the respondent that it should be asked after question (ii). In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided.”

M’s case Is M’s claim within the ambit of a substantive Convention right?

[34]The reason why the word ‘ambit’ repeatedly enters this area of law is that the discrimination prohibited by art 14 goes wider than discrimination in the direct application of the other Convention rights: by protecting the ‘enjoyment’ of such rights it reaches cases where the subject-matter of the alleged discrimination “constitutes one of the modalities” of the exercise of a Convention right (National Union of Belgian Police v Belgium

(1975) 1 EHRR 578

, §45). Thus where the denial to the Belgian police union of an entitlement to be consulted did not infringe art 11, the according of the same entitlement to other unions nevertheless called for justification of the exclusion of the police union under art 14 because one way (‘modality’) in which the right of association under art 11 was given effect in Belgium was by creating statutory consultation rights. The process can be conveniently paraphrased as requiring the measure in question to be linked to a guaranteed right (Schmidt and Dahlstrom v Sweden

(1976) 1 EHRR 632

, §39) or as requiring it to fall within the ambit of such a right (Ghaidan v Mendoza

[2004] 3 All ER 411

, §10, per Lord Nicholls). There is debate (ibid. §11) as to how slender the link can legitimately be, but in my judgment it does not arise here. A recent decision of this court shows that a measure making arrangements which are one stage removed from a Convention right (in this instance a mature-student loan which was material but not critical to the claimant’s attending a course) falls outside the ambit of the right (here the art 2P1 right to education): Douglas v North Tyneside MBC

[2003] EWCA Civ 1847

[35]Ms Monaghan puts forward three separate routes by each of which, she contends, M comes within the ambit of a substantive Convention right. First, she submits, the computation of child support liability affects both M’s family life with her child and ex-husband and the family life of M and her present partner. The former of these, she argues, without even needing to challenge the heterosexual concept of family, must come within the art 8 concept of family life. The latter, given the decision of the House of Lords in Fitzpatrick v Sterling Housing Association

[2001] 1 AC 27

, also does so. Secondly, the operation of the scheme affects her private life by requiring her to contribute more than if she were now in a heterosexual relationship. Thirdly, the scheme deprives her of a possession – money – on a basis which cannot be justified under art 1P1. Family life: M’s former family

[36]In Petrovic v Austria

(2001) 33 EHRR 307

the Court held that a parental leave allowance, while not itself called for by art 8, nonetheless came within the scope of art 8 because it was intended to promote family life by enabling one parent to look after the children at home, and so demonstrated the state’s respect for family life. It therefore engaged art 14, although in the event there was no violation.

[37]It does not, however, follow that the relationship between M, her ex-husband and her child, when the husband is the child’s carer and M an absent parent, can equally be called family life within the meaning and intent of article 8. This was the view of the Commission in Logan v United Kingdom (app. no. 24875/94; Sept. 1996). Mr Logan’s case was that the payments required of him as an absent parent left him without enough money to visit his children. The Commission said:

“The Commission notes that the relevant legislation, insofar as it seeks to regulate the assessment of maintenance payments by absent parents, does not by its very nature affect family life. Nor … has [the applicant] shown that the effect of the operation of the legislation in his case is of such a nature and degree as to disclose any lack of respect for his rights under art 8.”

[38]Mr Sales’ reliance on Logan is not made easier by what the Commission record as the United Kingdom government’s submission, that the Child Support Act “is intended to protect family life, maintenance payments being intended to provide for children’s basic living costs”. But the family to which this submission refers must be whatever family the child now forms part of, not the former family from which one parent is absent. Taking the Commission’s reasoning into account, as s.2 of the Act requires, I would hold that neither the principle of the scheme nor its practical impact on M manifests any lack of respect for M’s family life with her child and ex-partner. The principle underlying the scheme is to stabilise what is left of a family’s life, and the practical impact relevant to this case is on M as a partner in a new relationship, not as an absent mother.

[39]I would therefore not accept that what survives of M’s previous family life is within the ambit of art 8 so as to be able to engage art 14.

Family life: M’s present relationship

[40]What then of M’s present life with her female partner? That it possesses all the characteristics of family life apart from heterosexuality is not in dispute. Ms Monaghan submits that it is only the regulations which prevent it from being recognised as family life. Mr Sales contests this: the Strasbourg jurisprudence, he submits, also prevents it because it accords to states a margin of appreciation in relation to the status of same-sex relationships which shields the impugned domestic distinction from criticism.

[41]Ms Monaghan rests her case upon the decision of the House of Lords in Fitzpatrick v Sterling Housing Association

[2001] 1 AC 27

. There, their Lordships held that a same-sex couple were capable of constituting a family so as to create a tenancy by succession in favour of the surviving partner as “a member of the original tenant’s family” within §3(1) of Sch 1 to the Rent Act 1977. Mr Sales contends that this has no decisive bearing on the issue before us, which is the meaning of the Convention. As to this he founds upon the decision of the Court in Estevez v Spain (app. no. 56501/00; 10 May 2001) concerning the withholding of a survivor’s pension from the deceased’s long-term homosexual partner. The Court, declaring the application under arts 8 and 14 inadmissible, said:

“… the Court reiterates that, according to the established case-law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by article 8 of the Convention….The Court considers that, despite the growing tendency in a number of European states towards the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation…”

[42]There is an apparent tension between the two propositions in this passage. The first sentence, taken by itself, would suggest that homosexual relationships cannot come within the art 8 concept of family life. The second sentence, by contrast, indicates that it is open to individual states to include or exclude such relationships, and that their choice of policy in this regard lies within the margin appreciation. The importance of the allocation of the issue to the state’s margin of appreciation is this. What a state does is of no concern to the Strasbourg court unless it impinges upon a person’s Convention rights. It is only if a state’s act does potentially impinge on Convention rights that the Court is called upon to decide whether the act is unrelated to the Convention, in which case the claim will be inadmissible, or impinges upon a Convention right. If it does the latter, the Court may either decide that the Convention has been violated or hold that the act, while capable of violating the Convention, lies within the state’s margin of appreciation, so that no actual violation has occurred. The majority of examples of the latter have arisen in cases of obscenity and blasphemy which, while disclosing an interference with art 10 rights which might well not be universally justified, are allowed to stand in the light of the domestic appreciation of local conditions.

[43]It is evident, in my judgment, that what the Court is saying in Estevez is that homosexual relationships, even long-established ones, do not necessarily – that is, as a matter of settled Convention jurisprudence - fall within art 8, but neither do they necessarily fall outside it: it is for member states to determine which is to the be the case within their borders. It follows that the content of the art 8 right will to this extent be a matter of domestic law.

[44]But, contrary to Mr Sales’ argument, the relevant domestic law here is not, or not simply, the statutory child support scheme with its definition of the family as a heterosexual unit. It is also the body of exegetic case-law which, culminating in Ghaidan v Mendoza, has recognised that, at least in relation to security of tenure, a same-sex couple are no different from a heterosexual couple. In relation to the child support scheme, Mr Sales has made no attempt to justify the exclusion of members of same-sex couples from the entitlement to the more benign calculation of liability enjoyed by members of heterosexual couples. He has explained it simply as an anomaly which requires time for correction and which meanwhile does not offend against the Convention. So we are not in the territory of moral policy which led in Estevez to the allocation of the issue to the margin of appreciation.

[45]Moreover, Estevez is not the Court’s last word on this subject. As Lord Slynn pointed out in Fitzpatrick’s case (ante, at 39-40), the Strasbourg case law was still “in an early stage of development” and attitudes might change as to what was acceptable throughout Europe. And within two years, in Karner v Austria

(2003) 14 BHRC 674

, the Court held that the state’s refusal to let a same-sex partner inherit the flat in which both men had lived was both discriminatory by virtue of the operation of art 14 on art 8 and unjustified. They said:

“37. … very weighty reasons have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex as compatible with the convention ….. Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification (see Smith and Grady v UK [1999] ECHR 33985/96, §90; SL v Austria [2003] ECHR 45330/99 §37). ……………….. 40. The court can accept that the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Mata Estevez v Spain…(admissibility decision, 10 May 2001) with further references). It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality has been respected. 41. The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to member 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 that the measure chosen is in principle suited for realising the aim sought. It must also be show that it was necessary to exclude persons living in a homosexual relationship from [the protective measure] in order to achieve that aim. The court cannot see that the government has advanced any arguments that would allow of such a conclusion.”

[46]The Court’s reasoning (paras. 34-43) does not distinguish between the three limbs of art 8 – private life, family life and home – in concluding that the discriminatory provision related to the enjoyment of a Convention right. There is nothing to indicate that it was basing itself on the home or on private life rather than on family life, and para 41 (quoted above) suggests that if anything it was the latter. I do not accept Mr Sales’ submission that the Court in Karner “was not prepared to revisit the point” decided in Estevez. On the contrary, Estevez was before the Court but was cited by it (see para 40) only for the fallback proposition that in a sufficiently strong case the protection of the family might justify discrimination against homosexuals. For the rest, Karner heavily narrows the margin of appreciation accorded by Estevez by bringing sexual preference within the grounds of discrimination prohibited, absent special justification, by art 14 in relation to the enjoyment of art 8 rights. A similar approach had been taken by the Court in Salgueiro v Portugal

(2001) 31 EHRR 47

to the case of a man whose estranged wife had been given custody of their daughter because of his homosexuality. The effect of the decision is that a homosexual parent is not debarred from maintaining a family life, within the ambit of art 8, with his children.

[47]In Ghaidan v Mendoza

[2004] 3 All ER 411

it was held by the House of Lords that the failure of the alternative argument in Fitzpatrick that the surviving partner was a spouse within §2 of the Schedule could not survive the coming into force of the Human Rights Act. It does not appear that Estevez was relied on in argument before the House. Lord Nicholls said:

“17…….. A homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together. They have an equivalent relationship. There is no other rational or fair ground for distinguishing the one couple from the other in this context: see the discussion in Fitzpatrick’s case … 18. This being so, one looks in vain to find justification for the difference in treatment of homosexual and heterosexual couples…. Here the difference in treatment falls at the first hurdle: the absence of a legitimate aim. None has been suggested by the First Secretary of State, and none is apparent. In so far as admissibility decisions such as S v UK (1986) 47 DR 274 and Roosli v Germany (1996) 85 DR 149 adopted a different approach from that set out above, they must now be regarded as superseded by the recent decision of the European Court of Human Rights in Karner’s case.”

Human Rights in Karner’s case.”

[48]Whether, therefore, the determinative jurisprudence is that of the Strasbourg court or of our domestic courts, Mr Sales’ submission, in my judgment, fails. The highest it can be put at the Strasbourg level is that the issue lies within this country’s margin of appreciation, and for the same reasons as generated the decision in Ghaidan that margin does not avail the executive, which has advanced no justification at all for the discrimination contained in its delegated legislation. But the better view of the present state of Strasbourg jurisprudence is that discrimination on grounds of sexual orientation in the enjoyment of any aspect of the rights accorded by art 8 is prohibited unless compelling and proportionate justification in the interests of the traditional family is able to bring it within the state’s margin of appreciation.

[49]What remains to be determined is whether the operation of the child support scheme comes within the ambit of article 8 by impinging in some significant degree on the family life of M and her partner. In my judgment it does. Putting it schematically, the child support scheme sets out to respect family life by making allowance for the joint expenses of an absent parent’s new household. It is this, without regard to discrimination, which brings the measure within the ambit of art 8. If then the scheme discriminates between one family unit and another on the ground of its members’ sexuality, art 14 too becomes engaged. Here, by treating their finances as wholly separate when they are not, and by consequently assessing M’s child support payment at a higher sum than if theirs was a heterosexual partnership, the scheme manifests a different level of respect for their family life. Mr Sales was willing to concede that for this purpose M is, at least technically, a ‘victim’ within s.7(1) of the Act. Private life

[50]The rationale in respect of private life cannot logically be the same. Sexual orientation, a well-recognised aspect of private life, is the sole determinant of the differential treatment in the child support scheme; but – unlike the absent parent’s family life - it is not what the scheme sets out to recognise. It is only if one starts from the discriminatory provision and then relates it to art 8 that a nexus can be created with art 14, and I am not satisfied that this is the right approach: cf the remarks of Lord Eassie in In the Petition of Dove (14 December 2001, Outer House, Court of Session), §21. But it has not been debated in any depth before us, and if I am right about M’s family life, it does not matter. It is worth observing, nevertheless, that this is an area of significant debate and continuing reappraisal. On the one hand, some doubt has been cast on the proposition in Grosz, Beatson and Duffy, Human Rights, para C14-10, that “even the most tenuous link will suffice for art 14 to enter into play”: see Ghaidan v Mendoza (ante) per Lord Nicholls, §11. On the other, there is the powerful case made in a recent article by Professor Wintermute, ‘”Within the ambit” – how big is the gap in

article 14 of the ECHR

?’ [2004] EHRLR 366 for a much more fluid relationship between art 14 and the other Convention rights, so that the simple fact of discrimination which obstructs access to a Convention right (for instance, forcing a person to choose between his or her sexual orientation and an opportunity related to a Convention right) will be capable of bringing art 14 into play.

[51]I would, however, observe that there is a contrast between the present case and Lustig-Prean and Beckett v United Kingdom

(1999) 29 EHRR 548

, on which Ms Monaghan relied. There the Royal Navy had made it its business to inquire into the applicants’ sexual orientation in order to take steps against them: hence the admitted interference with their right to respect for their private lives. The very act in issue invaded the Convention right. In the present case this is not necessarily so: the measure complained of respects M’s private life but makes it a ground of distinction in the assessment process. Hence her need to rely on art 14. The question is whether she can do so without first establishing an act or step which comes within the ambit of the respect owed by the state to her private life, and this, as I have said, I doubt. Protection of M’s property

[52]I also find it unnecessary to decide whether art 1P1 is engaged. But unless it can be said that this article covers anything done by the state which costs the individual money, I have some difficulty in seeing how the child support scheme comes within its ambit. As the Commission recalled in Burrows v United Kingdom (27 November 1996), “the deprivation of property … is primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of right between persons under private law unless the state lays hands – or authorises a third party to lay hands – on a particular piece of property which is to serve the public interest…”

[53]Child support is neither a tax nor a form of expropriation: it is an allocation of private financial responsibility, and an expansive approach to art 1P1 is in my view to be resisted. There is a real difference between requiring M to pay money, which is all that is said by Ms Monaghan to come within the scope of art 1P1, and assessing her means in disregard of a family relationship which, were it heterosexual, would be respected by the state in the provision it makes for the computation of means. I appreciate that a more catholic approach to this article is apparent in §64-5 of Marckx v Belgium

(1979) 2 EHRR 330

, but no such approach can overcome the fact that the second paragraph of art 1P1 is not freestanding but is a proviso to the first paragraph. A law which, as in that case, prevents a child from inheriting her mother’s estate comes very much more obviously into the ambit of the article than one which requires a parent to contribute to her child’s upkeep. The Michalakquestions

[54]It can be seen that, as Baroness Hale in Ghaidan suggested might be the case, the first and second questions – ambit and difference – can overlap. This in no way forecloses the next question, whether the two situations which are being compared are in truth analogous – a question which in turn overlaps with the possibility of justification, for example in relation to the preservation of the traditional family.

Is there a material difference in treatment?

[55]Mr Sales submits that there is no true analogy, and therefore no legally relevant discrimination, between a member of a heterosexual couple and a member of a same-sex couple in the context of the child support system. His first reason is that whether the latter is treated less favourably than the former will depend on the facts of each case. But this has no bearing on the present issue, which is whether the conceded disadvantage that M experiences would face her if her present partner were a man. Manifestly it would not.

[56]Next, Mr Sales argues that operating point by point, as the Commissioner has done, rather than taking the scheme as a whole, can result in an infinity of levellings-up at the instance first of one group, then of its comparator, and so on. But that is not how the case against him is put: it is put, correctly, as something which adversely affects M as against a heterosexual absent parent. What Mr Sales says about the comparison on which Ms Monaghan relies is that the differences within the Regulations mirror systemic distinctions within the social security system many of which work to the advantage of same-sex couples. The question is then, using the approach adopted by Laws LJ in R (Carson) v Secretary of State for Work and Pensions {2003] 3 All ER 577, §61, whether the respective circumstances of M and an absent parent in a heterosexual relationship are so similar as to call, in the mind of a rational and fair-minded person, for positive justification of the less favourable treatment of M. Mr Sales’ answer is that they are not, “because there are material differences as to how same-sex couples are treated in other elements of the child support scheme and within the wider benefit system”.

[57]With respect, I do not see how this furnishes an answer to the question of comparability. It may go to relief, to which I will come. But the answer to the question, especially in the light of the decision in Fitzpatrick, is in my view that any fair-minded person would expect there to be a good reason unrelated to sexuality for the difference in treatment. The bald fact that the difference is endemic in the system does nothing to eliminate the distinction: if anything, it highlights it. What matters is that but for her sexuality, M would be differently assessed: see James v Eastleigh Borough Council

[1990] 2 AC 751

, 765. In other words, the similarity is complete save for the sexuality of M and her comparator, and a rational and fair-minded person would want to know why the scheme distinguishes between them.

Justification

[58]In oral argument Mr Sales submitted that if the scheme were discriminatory, the discrimination would be justified by the fact that the provision encountered by M was a single element in a large system of rules, the whole of which is being addressed and in due course reformed by the state. It is noteworthy that it was not the Secretary of State’s case, as it might have been in the light of Estevez, that it was justifiable for the United Kingdom to adopt a differential rule for members of same-sex couples as against heterosexual couples. No doubt for the same reason, no answer has been advanced under art 8(2) if M’s case should be held to come within the ambit of art 8(1).

[59]The fact that an otherwise unjustifiable anomaly is endemic in the system may explain and perhaps even excuse it, but it cannot logically justify it. Were it otherwise, the more entrenched the discrimination, the more justified it would be. Much the same is true of the case for a bright-line rule upon which Mr Sales also founds. He cites in support of this a number of decisions of the Strasbourg Commission and Court which show that legal certainty is itself a value inherent in the Convention. Of these cases, Walker v United Kingdom (2000) 29 EHRR CD 276, K v Ireland (1984) 38 DR 158, JR v Germany (app. no. 22651/93) and Stubbings v United Kingdom

(1997) 23 EHRR 213

are decisions upholding statutory limitation periods. James v United Kingdom

(1986) 8 EHRR 123

, §68, holds the breadth of statutory leasehold enfranchisement – practically the opposite of a bright-line rule - to be a justifiable use of legislative policy.

[60]These decisions do not seem to me to help with the present question. What may be more germane to it is the distinct line of authority on which Mr Sales relies as showing that a failure to correct non-compliant legislation may not infringe the Convention if the reason for non-compliance is that time is, or was, needed to amend the law. In Walden v Liechtenstein (app. no 33916/96), an admissibility decision, the Strasbourg court held that the refusal of the state constitutional court to strike down the discriminatory elements of the pension system was justified because of the disadvantage it would cause to others and because the state was engaged on systematic reform which would take longer than the six months for which the constitutional court was empowered to suspend its decrees. Here the principle of legal certainty was invoked:

“In this context the Court recalls its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense states from questioning legal acts or situations that antedate judgments of the court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see Marckx v Belgium…§58). Moreover, it has been accepted, in view of the principle of legal certainty, that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period….”

[61]The principle set out in this passage is well established throughout much of the world: see the survey in the judgment of the Supreme Court of Canada in Re Manitoba Language Rights

[1985] 1 SCR 721

, drawing on decisions from the Abbé de la Fontaine’s case in the Yearbooks and post-bellum cases in the United States to modern constitutional voids in Southern Rhodesia, Pakistan and Cyprus; see also the discussion of the de facto principle in Wade and Forsyth Administrative Law (8th ed, p. 293-4). It is a pragmatic recognition that legal principle can on occasion come into conflict with legal certainty, and that in such a situation, so long as it is finite, some law is better than no law. To this, it is worth noting, the Strasbourg court in Walden’s case added a test of proportionality: it held that the time in the event taken by Liechtenstein to amend its legislation – some seven months from the constitutional court’s decision – was reasonable.

[62]Marckx v Belgium

(1979) 2 EHRR 330

concerned the unfairly discriminatory effect of Belgium’s inheritance laws on an illegitimate child. The Belgian government accepted that reform was required, but argued that to hold the current law incompatible with the Convention would have the automatic effect of nullifying it back to 1955, the date of the entry into force of the Convention in Belgium, and so would be destructive of legal certainty. The Court concluded that in all the circumstances “the principle of legal certainty … dispenses the Belgian state from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain contracting states having a constitutional court: their public law limits the retroactive effects of those decisions of that court that annul legislation.” One of the interesting aspects of the Manitoba case (above) is that it found a similar power to exist at common law.

[63]In this country, every superior court is a court of constitutional law, but none has the power to annul primary legislation. It may well be, nevertheless, that the Human Rights Act requires us to develop a more sophisticated approach to relief for individuals against the state than public law has historically adopted (cf. my article at [1989] PL 32 and that by Mr J.G.McK.Laws, ibid. 27). But none of the jurisprudence supports the proposition that otherwise unjustified breaches of the Convention can be justified by the difficulty of setting them right.

[64]Nor do the domestic decisions relied on by Mr Sales support it. In R v Secretary of State for Employment, ex parteSeymour-Smith (No 2)

[2000] 1 WLR 435

, the House of Lords held that as at 1991, when the impugned 1985 Order affected the claimants, its indirectly discriminatory effect had not become so apparent as to deprive it of its initial objective justification. One sees the same approach adopted by this court, but to opposite effect, in R (Hooper) v Secretary of State for Work and Pensions

[2003] 1 WLR 2623

, where the Secretary of State was unable to show any objective justification for the continuance of a discriminatory measure.

[65]This line of authority, however, has no bearing on the present question, which is not concerned with the erosion of justification over time but with the time required – or being taken – to remove discrimination which it has not been sought to justify at any point of time.

[66]More to the present point, in Bellinger v Bellinger

[2003] 2 AC 467

, Lord Nicholls referred to the decision of the Strasbourg court in Goodwin v United Kingdom

(2002) 35 EHRR 447

, which had held that the failure of the United Kingdom’s law to recognise transexuality breached the Convention. Of counsel’s submission that the court had left it to the United Kingdom “in due course to implement such measures as it considers appropriate to fulfil its obligations” (cf. §120), Lord Nicholls said:

“52. I cannot accept this submission. It may be that, echoing the language of the European Court of Human Rights in Marckx v Belgium …, the principle of legal certainty dispenses the United Kingdom government from reopening legal acts or situations which antedate the judgment in Goodwin. But that is not the present case. In the present case s. 11(c) of the Matrimonial Causes Act 1973 remains a continuing obstacle to Mr and Mrs Bellinger marrying each other. 53. It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may then not be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the Court in Walden v Liechtenstein … is an example of this pragmatic approach to the practicalities of government. But the question now under consideration is different. It is more general. The question is whether non-recognition of gender reassignment for the purposes of marriage is compatible with articles 8 and 12. The answer to this question is clear: it is not compatible. The European Court of Human Rights so found in July 2002 in Goodwin and the Government has so accepted. What was held to be incompatible in 2002 has not now, for the purposes of section 4, become compatible. The government’s announcement of forthcoming legislation has not had that effect, nor could it. That would make no sense.”

[67]None of these decisions gives any support to a doctrine of justification by the logistics of reform. The practicalities – and they may well be extremely important - go logically to the issue of remedy. I will come to this aspect of the case after I have considered Ms. Langley’s appeal. But I turn to it having concluded that the child support scheme discriminates unjustifiably on the ground of M’s sexuality in its impact upon her right to respect for her present family life Ms. Langley’s case A relevant analogy?

[68]The Commissioner decided against Ms. Langley because he found no material similarity or analogy between her case and that of a similarly placed tenant whose former partner was of the same sex. I regret that I cannot accept his reasons for so holding. They are based, as the Commissioner himself makes clear, on no more than speculation about the factual grounds for the distinction:

“25. Regulation 7 is an anti–abuse provision. It excludes two categories of cases from housing benefit. One category consists of cases in which the housing benefit scheme is being abused. The other category consists of cases in which there is a risk that the housing benefit might be abused. In this category, actual abuse does not have to be shown. The risk and the difficulties of proof justify a provision that is not limited to actual abuse. 26. Obviously, regulation 7 does not cover every case in which there is a risk that the housing benefit scheme might be abused. If it did, it would be very much longer. Even then it would inevitably be incomplete. It is possible to speculate with some accuracy about the general process by which the policy makers devised the present form of the regulation. There must have been a selection of the circumstances that would be included. That selection must have involved a judgment of the likelihood and frequency with which the risk of abuse would arise. And that judgment must have been based on evidence of actual circumstances that had been found to arise in practice. 27. In that context, it is not necessarily the case that heterosexual and gay couples are in relevantly similar situations. They may not pose the same risk of abuse. There may be no significant difference between heterosexual and gay relationships other than the sexual orientation of the partners. But that does not mean that there is the same risk of abuse when the relationship comes to an end. Whether there is depends first on evidence and then on an assessment of the likelihood and frequency of risk shown by that evidence.”

[69]I do not think it legitimate to assume the factuality of the very thing that calls for proof: that there was known or believed to be a problem of artificial tenancies as between former heterosexual partners which was not present, or was far less prevalent, as between former same-sex partners. No such evidence was before the Commissioner or is before the court. Is the rule within the ambit of a Convention right?

[70]This means that one has to go back to the beginning.

[71]Is the measure then within the ambit of art 8? If the question is posed in relation to the housing benefit system as a whole, plainly it is: its whole purpose is to keep a roof over the head of people who would otherwise be unable to afford it – in other words, it is to give substance to the state’s respect for the home. If it is posed in relation to regulation 7(1)(c)(i), the converse is true: the object is to prevent abuse, and the discriminatory meaning of ‘partner’ – though not confined to this regulation – operates outside any Convention right. Mr Sales founds on the latter, Mr Drabble on the former.

[72]I do not think that Mr Sales’ argument is assisted by the passage he relies on in the judgment of Laws LJ in Carson’s case (above), §25-9. It is of course right that the ambit of art 8 “cannot … extend to include whole swathes of a state’s social security system” and does not embrace “the general welfare provisions made by the state”. But the housing benefit scheme is a discrete scheme with a particular purpose that does lie within art 8. The question is whether Mr Drabble can properly narrow the issue from the scheme as a whole to the particular regulation.

[73]Mr Drabble puts his case in the first instance on art 8 alone. In other words, he submits that the chosen ‘modality’ of respect for Ms. Langley’s home, namely the provision of benefit to help pay the rent falls within the ambit of art 8 and is being withheld from Ms. Langley on a ground which has no objective justification and which violates art 14 since it would not apply if her sexuality were different.

[74]In my judgment it is not the entire scheme but the specific anti-abuse provision which has to be examined. My reason for so deciding is one which has featured only marginally in argument, but which seems to me to provide a rational criterion to which the only alternative is intuition. By s.7(1) of the Human Rights Act - A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may … bring proceedings … or … rely on the Convention right or rights concerned … but only if he is (or would be) a victim of the unlawful act. The use of the concept of a victim to afford standing domestically derives from the provision of

art 34 of the Convention

which limits standing in Strasbourg to persons or organisations or groups “claiming to be the victim of a violation” by a contracting state. The Act by s.7(7) ties the domestic meaning of ‘victim’ to its Convention meaning. The Court’s jurisprudence shows it to be an autonomous term, requiring the complainant to be directly affected by the violation, whether actually or potentially, but not necessarily to have suffered by it. In Klass v Germany

(1978) 2 EHRR 214

the Court said:

“In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary to show that the law should have been [i.e. has been] applied to his detriment.”

[75]It is therefore germane to ask whether Ms. Langley, assuming everything else in her favour, was a victim of the discriminatory effect of regulation 7. It seems to me that in order to rank as a victim Ms. Langley must be able to show that, if the regulation included same-sex couples, she would be in some appreciable way better off. This she plainly cannot do. To obtain a favourable answer it would be necessary to ask whether, if there were no such regulation at all, Ms. Langley would be better off. Naturally she would be. But what Ms. Langley would then be the victim of would not be the discriminatory element of the anti-abuse provision but of the provision itself, to which no Convention objection has been or could be taken.

[76]This also answers the question whether it is the regulation or the entire scheme which has to be inspected for discrimination: for one has only to ask whether Ms. Langley is a victim of the housing benefit scheme as a whole to see that the question is meaningless. In other words, once the case is looked at on the footing that, to succeed, Ms. Langley must be a victim, it is only the particular discriminatory regulation which can come in question.

[77]What regulation 7(1)(c)(i) is legitimately directed to is the risk that when a couple part, the one in whose name the former home is held will continue to provide a home for the other, and that they will collude so as to do so at public expense. It is the difficulty of proving this in any one case which has caused the rule-maker to introduce a bright-line rule which, while it will inevitably exclude some genuine arm’s-length lettings between former heterosexual partners, will not exclude bogus lettings between former homosexual partners. Decisiveness is thus its solitary virtue, arbitrariness its apparent vice. This is something of which the common law may take cognisance (see Kruse v Johnson

[1898] 2 QB 91

), but it is not directed to anything within the scope of a Convention right.

[78]If this is wrong, and if the correct analysis is that the regulation discriminates to Ms. Langley’s detriment between people like her and people whose former partner is of the same sex as themselves, I would accept that there is no objective justification either under art 8(2) or under art 14 for what would then be discrimination on the ground of sexuality in the enjoyment of a Convention right. But that will not be the end of the road: the question of remedy or relief becomes all-important in such a situation, and I will go on to consider it on the assumption that there is in Ms. Langley’s case, as there is in M’s, a violation of the Convention.

Remedies

[79]I have made some general observations in §§59, 61 and 64 about the exigencies of legal certainty and good government in the fashioning of remedies. The Human Rights Act makes carefully thought-out provision in this regard, but it does not and could not contain a prescription for every contingency.

[80]By s.3(1) “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” S.4 then permits a court which has been unable to read a provision of primary legislation conformably with the Convention rights to make a declaration of incompatibility. But for secondary legislation (save that which is dictated by primary legislation) the effect of s.6(1) is that the rule maker will have acted beyond his or her powers, since:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

The consequences of this are not prescribed by the Act because they are already governed by the common law.

M’s case

[81]Ms Monaghan’s stance is orthodox: the court can, she submits, and therefore should read the child support scheme pursuant to s.3(1) so as to include persons of the same sex in the meaning and effect of the words ‘family’ and ‘partner’ in regulation 1(2) of the 1992 Regulations; but if that is not possible, the court should strike down as unlawful under s.6(1) the restrictive definition of ‘unmarried couple’. She is able to rely for support on the speeches, particularly that of Lord Nicholls, in Ghaidan v Mendoza

[2004] 3 All ER 411

: see §29-30, and §38ff per Lord Steyn, and §111, 121 per Lord Rodger. She seeks no retroactivity: indeed she seeks no relief for anybody except M, and she seeks it in the form proposed by the appeal tribunal and endorsed by the Commissioner (see §20 above).

[82]As to the pathway to this conclusion, the appeal tribunal took the view that the anomaly could and should be corrected by using s.6 of the Interpretation Act 1978 so as to treat the masculine as including the feminine and the feminine as including the masculine in the Regulations. This approach the Commissioner rejected as “unnecessarily inventive”. He also rejected as “a wholesale redrafting” the appeal tribunal’s alternative solution of simply disapplying the material definition. Instead he preferred to fall back on the governing qualification in regulation 1(2) that the meanings it contains are to apply “unless the context otherwise requires”. Mr Sales supports the Commissioner’s rejection of the appeal tribunal’s solutions but attacks his alternative solution (which produced the same outcome) as involving a novel and illicit interpretation of the word ‘context’. His contention is that there is no solution available under s.3, and that the only recourse (assuming everything else against himself) is to a declaration under s.6(1) that it would be unlawful to enforce the Regulations so as to breach Convention rights and that a Convention-compliant determination must be made. He accepts that the Regulations do not come into the s.6(2)(a) category of subordinate legislation of which the content is dictated by primary legislation.

[83]These paths all lead to much the same destination. It is not suggested by anyone that M should go empty-handed. But the differences, albeit practical and doctrinal, may matter in other cases.

[84]I agree with Mr Sales that the Commissioner’s solution, while none the worse for being novel, is untenable. The saving for context in a definition section is a standard device to spare the drafter the embarrassment of having overlooked a differential usage somewhere in his text (and it will be a comfort that the only examples in Bennion Statutory Interpretation (4th ed), §373, of such differential usage come from statutes of 1833, 1855 and 1861). To use it as a vehicle for the innovative approach to interpretation created by s.3 of the Human Rights Act is, in my judgment, to overload it to the point of breakdown. The Convention rights have not since 1998 become part of the context which gives the words of an instrument their meaning: they are a filter through which the meaning of the words in their original context must now pass if it can. If it cannot, and if the words appear in or are demanded by primary legislation, the task of solution passes to ministers and to Parliament. If the offending words are in secondary legislation, the task is primarily for the courts.

[85]I also agree with Mr Sales and the Commissioner that the appeal tribunal’s use of the Interpretation Act is inapposite. It seeks to achieve by indirect means what the Human Rights Act sets out to achieve directly. And it does so at too high a cost: it means that the expression ‘unmarried couple’ in the regulations has to be taken as meaning (with the interpolations in italics) “a man or a woman and a woman or a man who are not married to each other but are living together as husband and wife”. The unaltered requirement that they should be living together “as husband and wife” is capable of causing inappropriate inquiry and invidious argument.

[86]The same effect is better accomplished, in my judgment, by simply disapplying – in effect, deleting - the definition of ‘unmarried couple’ in regulation 1(2). This leaves the meaning of ‘married couple’ intact. But it liberates the meanings of ‘family’ and ‘partner’, where there is no marriage, from the requirement of heterosexuality.

[87]I am not attracted by Mr Sales’ alternative, which is to make declarations in terms of such generality that they would not enable those responsible to know whether they should or should not take M’s partner’s finances into account in assessing M’s child support liability. A declaration that the law must be complied with is true but uninteresting.

[88]Mr Sales’ argument for going no further than this is that the material provision is part of an interlocking system which may be disrupted if one element alone is removed, and that the ongoing process of reform is the right way to deal with the anomaly. He points out that the impugned provisions reproduce the definitions contained in s.137 of the Social Security Contributions and Benefits Act 1992, Part VII of which governs income-related benefits and can work to the advantage of same-sex couples. Other provisions in the material regulations can work either way, depending on the facts of each case. (Indeed Ms Monaghan has demonstrated how, in one set of circumstances, an absent parent in a same-sex partnership will pay less in child support under the present scheme than if the anomaly were removed.) Moreover, the statutory power under s.28A of the Child Support Act 1991 to make a departure direction can be used, as it was in M’s case, to correct imbalances caused by the offending definition.

[89]So far as the two-way traffic is concerned, this is a question of taking the rough with the smooth: there will be some same-sex couples who will not thank M for succeeding. The power to make a departure direction is a palliative but not a cure. What is more significant is the knock-on effect of the decision sought by M on the construction of s.137 of the 1992 Act. But once the issue of law has been decided, as for better or for worse it now has been, its ramifications cannot be curtailed by curtailing relief. The problem is part of what Professor Gearty in his recent book Principles of Human Rights Adjudication calls “the impossible demand” – the articulation of a human rights jurisdiction with a parliamentary democracy – but it is one which Parliament has called upon the courts to resolve. Ms. Langley’s case

[90]As I have said, Mr Drabble invites the court, if there has been a justiciable breach of Ms. Langley’s Convention rights, to resort directly to s.6(1) and to strike down regulation 7(1)(c )(i) as ultra vires. This would mean that there was now no anti-avoidance provision. Mr Sales submits that while it would be permissible, if this point were reached, to “read up” the provision under s.3 so as to include former same-sex partners, it would not be permissible to delete the provision, since to do so would be to legislate. That is not necessarily so: Ghaidan v Mendoza makes it clear that interference under the Human Rights Act with the language even of a statute (and we are not dealing with a statute here) will not necessarily cross the forbidden frontier of judicial legislation.

[91]Mr Drabble’s reason for excluding the use of s.3 to read up the provision is that to use it would affect many others who are not before the court. Mr Sales responds that this is the inevitable effect of a holding of law by a superior court: the decision in Ghaidan v Mendoza, for example, affects all lessors with tenants who come within the ambit of the decision. This is right; and, as I have pointed out above, it answers Mr Sales’ own objection to the grant of relief in M’s case. But Mr Sales also argues that the complexity of the system and the need for methodical reform afford a distinct reason why the court cannot use s.3. As Lord Justice Kennedy pointed out in argument, for example, to include same-sex couples in the anti-abuse provision by means of s.3 interpretation could well throw up fresh issues about siblings who have lived together.

[92]The difficulty which then arises is in the use to be made of s.6. One is now looking ex hypothesi at an unlawful provision in delegated legislation which cannot be read up, down or out. I do not see how a judicial tribunal at any level can shut its eyes to such an illegality. Its obligation must be to cure it in the best way available. This cannot be done under s.6(1) by judicially extending the provision to former partners of the same sex: to do so would go beyond any power which even the Administrative Court possesses. Mr Drabble’s case for striking down the provision would, in my judgment, have to succeed for want of any feasible alternative. The better answer would be for the Secretary of State to move with speed to adjust the system, but no tribunal or court can dictate such an outcome.

[93]For the reasons given earlier in this judgment the problem of remedy in Ms. Langley’s case is hypothetical. Nevertheless, I consider that its near-insolubility, save at the cost of destroying a perfectly legitimate provision, has a bearing on why there is no violation. As Mr Sales has submitted, the outcome for Ms. Langley would have been the same if there had been no difference in treatment between her and a former same-sex partner, since the single logical solution – albeit one which only the rule-maker could bring about – has always been to include same-sex couples in the anti-abuse provision. In other words, whether it is in relation to her being a victim or whether it is in relation to her securing a remedy, Ms. Langley’s case founders on the fact that the discrimination of which she complains has done her no harm. Conclusion

[94]Although I have put forward in §81 a solution of general applicability, no more is required by M than was decided in her favour by the appeal tribunal and upheld by the Commissioner: see §20 above. In Ms. Langley’s case no relief is called for because there is no justiciable wrong. I would therefore dismiss both appeals.

[95]Sedley LJ has fully set out the factual, legal and Convention background to these two appeals in the first part of his judgment, and it is therefore unnecessary for me to repeat what he has said.

M’s case

[96]Ms Monaghan advanced four different routes through which M is said to be within the ambit of a Convention right, thereby enabling her to contend that Article 14 is engaged. I do not consider that M can succeed on two of those routes, but I have come to the conclusion that she succeeds on the two other routes.

[97]First, she contended that M’s statutory obligation under the MASC regulations and the 1991 Act to pay child support for the benefit of her child from whom she is absent must have been intended by the UK government to promote family life, thereby rendering her case equivalent to that of the successful applicant in Petrovic -v- Austria

(2001) 33 EHRR 307

[98]There is force in the point that, if the grant of parental leave allowance (as in Petrovic) is within the ambit of Article 8, then the payment of child support maintenance should also be within the ambit of the Article. It can make no difference, in my view, that child support is payable by a parent for the benefit of his or her child, whereas parental leave allowance is paid by the state to a parent: they are both payable pursuant to a decision of the legislature. Although child support is simply a payment made by a parent to a child, with whom the parent may have no other contact, it is nonetheless, attributable to, and therefore based on, respect for the existence of a family relationship. Support for that point may also be found in the view of the European Commission (and the UK’s submission) in Logan -v- United Kingdom (Application 24875/94: September 1996).

[99]However, even accepting, as I do, that the child support legislation is within the ambit of Article 8, Ms Monaghan cannot, in my view, thereby justify the contention that Article 14 is engaged in M’s case. It seems to me that there is no correlation between the basis on which the child support scheme engages Article 8 and the nature of the discrimination complained of by M. The relevant respect for family life within the ambit of Article 8 would be in connection with the relationship between the child and the absent parent, whereas M’s Article 14 complaint has nothing to do with that relationship, but is concerned with the relationship between the absent parent and her partner, a wholly different unit.

[100]It has been said that, in order to claim that Article 14 is engaged, the claimant need establish only “a tenuous link” with another Convention right, although that proposition is open to doubt: see the brief discussion in paragraph 11 of the speech of Lord Nicholls of Birkenhead in Ghaidan -v- Godwin-Mendoza

[2004] 3 WLR 113

. However, even assuming that a tenuous link will suffice, it appears to me that, however one might characterise the link between the child support scheme and Article 8, it is simply not a relevant link for the purpose of M’s complaint, which concerns the impact of the relevant legislation on her relationship with someone who is outside the relevant family unit.

[101]The second route by which Ms Monaghan sought to bring M’s claim within the ambit of Article 8 is on the basis of respect for private life.

[102]The only case to which we were referred in this connection was the decision of the ECtHR in Lustig-Prean & Beckett -v- United Kingdom

(1999) 29 EHRR 548

, where it was held that, by inquiring into a sailor’s sexual orientation in order to take disciplinary or dismissal steps against him, the Royal Navy interfered with his or her right to respect for private life. In that case, as Sedley LJ has pointed out, the very act in issue invaded a Convention right. However, in the present case, there is a complaint of discrimination between persons in same-sex relationships and those in heterosexual relationships, but it cannot be said that of itself gives rise to a claim for unlawful interference with respect to private life. If there is any interference with private life, it is justifiable on the basis that the relevant provisions of the child support scheme could be said to require a degree of intrusion into the absent parent’s private life, in the sense that she may have to reveal that she is involved with someone in a sexual relationship. However, I do not think it could be suggested that this intrusion represented a lack of respect for private life. Indeed, it could be said that there is no intrusion into M’s private life in this connection, because she does not have to reveal whether she is in a relationship with her partner, because she would not be entitled to benefit from Regulation 15(3) of the MASC Regulations if it does not apply to someone in a same-sex relationship.

[103]I turn to the third route, namely the contention that M’s claim falls within the ambit of Article 1 of the First Protocol to the Convention (“Article 1P1”). In this connection, I have been much assisted by the observations of Laws LJ in R (on the application of Carson) -v- Secretary of State for Work and Pensions

[2003] 3 All ER 577

at paragraphs 37-49. Although he felt “a good deal of unease” about the reasoning of some of the ECtHR cases (paragraph 39) he was nonetheless satisfied that the Court of Appeal should follow and apply that reasoning (paragraph 41). He then went on to summarise the law in relation to the facts of that case in the following terms:

“47. [T]he law of the Convention is settled on this point as to the scope of ‘possessions’ for the purposes of [Article 1P1]. The policy of the cases is, I think, that while states are in general free to grant, amend or discontinue social security benefits and to change the conditions of entitlement to them as they please without any Convention restraint, yet where contributions are exacted as a price of entitlement the contributor should be afforded a measure of protection: it has, so to speak, cost him something to acquire the benefit. 48. This approach throws much needed light on the scope of Art. 14 read with [Article 1P1] …. We can now see that the Strasbourg court has treated the payment of contributions as giving rise to a species of pecuniary right, such as to constitute a ‘possession’ for the purposes of [Article 1P1]. A reduction or qualification of the right to be paid for benefit thus engages [Article 1P1] although it may not amount to a violation of the article simpliciter because the Convention confers no right to receive any particular amount. However, the reduction or qualification is subject to the constraints of Art. 14: if it is done on discriminatory grounds, the discrimination must be justified.”

[104]If the existence or absence of a right to a social security benefit, provided that it is subject to a requirement for contributions, is sufficiently within the ambit of Article 1P1 for the purposes of Article 14, I find it hard to see why M should not be able to invoke Article 1P1 in the present case for the purpose of giving rise to an allegation of discrimination under Article 14. Like the claimant in Carson (and in the ECtHR cases considered by Laws LJ), M does not seek to allege an actual infringement of her rights under Article 1P1. What she does allege is that a “possession” which would otherwise be her own unfettered asset, namely money, is being taken away from her by legislation, as a result of which she is worse off than a person in a position identical in all respects to hers save for sexual orientation. It seems to me that the present case can therefore be said to be a fortiori that in Carson, because at least one of the difficulties identified by Laws LJ in that case (namely the absence of any “possession” of which the claimant there was being deprived: see for instance paragraphs 43 and 44) does not arise.

[105]It can be said in the present case that the effect of the child support legislation is merely to allocate assets as between individuals. That does not impress me as a distinction which justifies a different conclusion from that which I would otherwise have reached. Article 1P1 comes into play just as much where legislation involves a transfer of assets from one individual to another as it does where the transfer is from the individual to the state: see for instance James -v- United Kingdom

(1986) 8 EHRR 123

. As I have sought to emphasise, this is not a case where M is contending that the terms of the child support scheme in any way contravene her rights under Article 1P1: she is merely invoking Article 1P1 as the relevant Convention right upon which her allegation of discrimination under Article 14 is founded.

[106]In reaching this conclusion, I have not disregarded the view expressed by the European Commission on pps 6 and 7 as to the admissibility of the claim in Burrows -v- United Kingdom (Application No 27558/95) where the applicant was seeking to maintain an allegation of discrimination under Article 14, based on Article 1P1, in relation to his liability for child support. In particular, the Commission said that Article 1P1 was:

“primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of rights between persons under private law unless the State lays hands - or authorises a third party to lay hands - on a particular piece of property for a purpose which is to serve the public interest.”

[107]In the first place, I note that the words in parentheses acknowledge that Article 1P1 is not excluded simply because the assets are transferred to another individual rather than to the state. Secondly, particularly in light of the reasoning of, and the ECtHR’s cases cited by, Laws LJ in Carson, I find it difficult to accept the doubts expressed in the passage I have quoted if money is not included in the expression “a particular piece of property”. Thirdly, the Commission cannot have been saying that Article 1P1 cannot be engaged unless the transfer of property effected by the legislation complained of was intended “to serve the public interest”: the logical corollary would be that, if the state deprived an individual of his property for a reason which could not be said to involve the public interest, the individual concerned could not invoke Article 1P1, whereas I would have thought that that would be an almost paradigm case for invoking the Article.

[108]I turn to Ms Monaghan’s final route, namely the impact of the legislation on the relationship between M and her present partner. On behalf of the Secretary of State, Mr Sales contended that the reference “family life” in Article 8 cannot, on the jurisprudence of the ECtHR, apply to a same-sex relationship. He made this contention good by reference to the decision in Estevez -v- Spain (Application 56501/00: 10th May 2001) where, in paragraph 14 of its decision, the ECtHR said this:

“[T]he court reiterates that, according to the established case law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention …. The court considers that, despite the growing tendency in a number of European states toward the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the contracting states, an area in which they still enjoy a wide margin of appreciation …..”

[109]In my judgment, there is no decision of the ECtHR subsequent to Estevez which calls these observations into question. In particular, I do not consider that the decision in Karner -v- Austria

(2003) 14 BHRC 674

assists M. In Karner, the applicant made good his Article 14 compliant, on the basis that Article 8 was engaged, where the law refused him the right to succeed to the tenancy of a deceased tenant, of whom he had been long-term same-sex partner, in circumstances where he would have been entitled to succeed had the relationship been heterosexual. However, it appears to me that the crucial point was that his claim was within the ambit of Article 8, not because of any connection with respect for private life or for family life, but because of its connection with respect for the home. To my mind, that is clear from what the ECtHR said at paragraph 33:

“The court does not find it necessary to determine the notions of ‘private life’ or ‘family life’ because, in any event, the applicant’s complaint relates to the manner in which the alleged difference in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under Art 8 of the Convention ….”

[110]Similarly, I do not consider that the decision in Salgueiro -v- Portugal

(2001) 31 EHRR 47

is inconsistent with what was said in Estevez. The ECtHR was there concerned with an alleged infringement of Article 14 based upon the applicant’s sexual orientation, and the claim was based on the contention that it was within the ambit of Article 8. The reason that the claim was within the ambit of that Article was because it concerned the decision of the Lisbon court to grant custody of the applicant’s daughter to his former wife, rather than to himself, because of his sexual orientation. Accordingly, it was not a decision which suggests that “family life” in Article 8 should be extended by the ECtHR to stable same-sex relationships. The family life in question arose out of the relationship between the applicant and his daughter.

[111]The recent decision of the House of Lords in Ghaidan to which I have referred does not cause me to doubt this conclusion. In that case, the relevant statutory provisions in the Rent Act 1977 permitted a widow or widower to succeed to the deceased’s statutory tenancy. Owing to the impact of the Convention, this was construed as applying to the survivor of a same-sex relationship. It appears to me that the reasoning in that case as to why Article 14 was engaged was substantially the same as the reason given by the ECtHR for concluding that Article 14 was engaged in Karner, namely because the relevant benefit was within the ambit of Article 8, involving as it did, respect for a person’s home.

[112]There is no doubt that, once a complaint can be brought within the ambit of Article 8, because it can be said to involve respect for the home, as in Karner or Ghaidan, the ECtHR will accept that Article 14 will be engaged, at least potentially, if the applicant can establish that, as a person involved in a long-term same-sex relationship, he or she may be treated less well than if involved in a heterosexual relationship: see paragraphs 37 and 40 in Karner and paragraphs 17 and 18 in Ghaidan. However, the essential point is that the observations in those paragraphs apply only once the applicant establishes that his claim is within the ambit of a Convention right.

[113]Nonetheless, that is not the end of Ms Monaghan’s argument on her final route. In a sense, it is only the beginning. She contended alternatively that, even if the ECtHR has not extended the respect for family life in Article 8 to same-sex relationships, the English courts should do so. She pointed out that in Estevez itself the ECtHR recognised that there is a growing tendency in many member states to grant equal recognition to stable same-sex partnerships, and that the court went on to hold that, because there is not a consistent approach throughout all member states, it is an area in which individual states “still enjoy a wide margin of appreciation” (see the passage quoted above from paragraph 14 of the judgment in Estevez).

[114]In my judgment, both principle and the authorities establish that, given that the ECtHR has concluded that the question of whether two persons involved in a loving permanent same-sex relationship are members of the same family for the purposes of Article 8 is within the margin of appreciation, it is open to the UK to decide whether such a relationship is, for the purpose of the UK, within the concept of family life. In other words, it is not open to this court to shelter behind the margin of appreciation. This point was made by Lord Hope of Craighead in R -v- DPP ex p Kebilene

[2000] 2 AC 326

at 380G-381A:

“This doctrine [sc. of the margin of appreciation] is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states, but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.”

(emphasis added).

[115]Lord Hope went on to say this at 381A-B:

“In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the court 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.”

[116]Observations to much the same effect were made by Lord Bingham of Cornhill and Lord Steyn in Brown –v- Stott

[2003] 1AC 681

at 703 and 842 respectively.

[117]Nonetheless, where one is within the margin of appreciation, the courts should be careful not to put themselves in the place of the legislature or the executive; there is a requirement for an appropriate degree of judicial self restraint - see per Laws LJ in R (Mahmood) -v- Secretary of State

[2001] 1 WLR 840

at paragraph 33, where the Court of Appeal was concerned with a challenge to a decision of the Secretary of State rather than to legislation. In that connection, Lord Phillips of Worth Matravers, MR, at paragraph 40, emphasised the requirement for the application of “an objective test” by the court.

[118]Those observations were considered by Lord Steyn in R (Daly) -v- Secretary of State ex p Adan [2001] 2 AC at paragraphs 25-28, where he approved the “general tenor” of the observations of the Court of Appeal in Mahmood. In paragraph 27 he suggested that there was a difference, albeit also “an overlap”, between “the traditional grounds of judicial review and the approach of proportionality”, and he went on to say that “the intensity of review is somewhat greater under the proportionality approach”.

[119]On behalf of the Secretary of State, Mr Philip Sales contended that, on a proper application of the margin of appreciation accorded to the English courts by the ECtHR in this connection, M cannot succeed in her claim based on Article 14, even though the basis on which her liability for child support is assessed results in her being less favourably treated than if she were in a heterosexual relationship. First, he argued that a same sex relationship should not be treated by this court as giving rise to a family relationship within Article 8. Secondly, he argued that, in light of the nature of M’s complaint, there is, in any event, no sufficient link between M’s claim and Article 8.

[120]So far as Mr Sales’s first argument is concerned, I have reached the conclusion that, in light of the margin of appreciation accorded by the ECtHR, a stable, same-sex relationship between two persons living together should, at least in most contexts, in this country in 2004, be treated as a family relationship, and therefore in principle within the ambit of Article 8. I believe that considerable support for this view is to be found in the decision and reasoning of the majority of the House of Lords in Fitzpatrick -v- Sterling Housing Association

[2001] 1 AC 27

. In that case the House of Lords held (Lord Hutton and Lord Hobhouse of Woodborough dissenting) that, in the context of the provisions relating to succession to regulated tenancies in Schedule 1 to the Rent Act 1977, a person, who had been in a stable same-sex relationship, and had been living with the deceased tenant at his death, was entitled to succeed to the tenancy on the basis that he or she was a member of the tenant’s “family”, as a matter of the ordinary construction of the Act, without the need (or the right ) to have recourse to the Convention.

[121]At 44A, Lord Nicholls said:

“The question calling for a decision in the present case is a question of statutory interpretation. It is whether a same sex partner is capable of being a member of the other partner’s family for the purposes of the Rent Act legislation. I am in no doubt that this question should be answered affirmatively. A man and a woman living together in a stable and permanent relationship are capable of being members of a family for this purpose. Once this is accepted, there can be no rational or other basis on which the like conclusion can be withheld from a similarly stable and permanent sexual relationship between two men or between two women.”

[122]At 44C, Lord Nicholls referred to “the intimate mutual love and affection and long term commitment that typically characterise the relationship of husband and wife” and continued:

“This love and affection and commitment can exist in same sex relationships as in heterosexual relationships. In sexual terms a homosexual relationship is different from a heterosexual relationship, but I am unable to see that the difference is material for present purposes. As already emphasised, the concept underlying membership of family for present purposes is sharing lives together in a single family unit living in one house.”

[123]Lord Slynn of Hadley took the same view, although he pointed out that the ECtHR “has not so far accepted claims by same-sex partners to family rights”, making reference to the fact that “attitudes may change as to what is acceptable throughout Europe”: see at 40A-B. Lord Clyde said at 48D-E that the meaning of “family” must inevitably depend to some extent upon its context. However, at 52C-D, he said this:

“[I]t is interesting to note the use of the word ‘family’ in the judgment of Singer J In re W (a minor) (Adoption: homosexual adopter) [1998] Fam 58, 59, where he said in relation to the placement of the child whose adoption was in dispute: “The family in question comprises two women living together in a lesbian relationship’. He there recognises the couple as constituting a family. That language seems to me to reflect what is now an ordinary usage.”

[124]While the reasoning and conclusion of the majority in Fitzpatrick were obviously directed to the meaning of “family” in Schedule 1 to the Rent Act 1977, it does appear to me that the observations which I have quoted from the speeches of Lord Nicholls and Lord Clyde are of wide application, and represent the approach of the courts, and, indeed, of the majority of the population, of this country, more generally. That approach is that, if, in a particular statute or other document, the relationship between persons of different sexes would result in each of them being a member of the other’s family, then the same result would obtain in a case where the facts were identical save that the relationship was between persons of the same sex.

[125]My view is reinforced by what was said by the House of Lords in the later case of Ghaidan. Thus Lord Nicholls said this:

“17. … a homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together. They have an equivalent relationship. There is no other rational or fair ground for distinguishing the one couple from the other in this context …. 18. This being so, one looks in vain to find justification for the different treatment of homosexual or heterosexual couples.”

[126]Baroness Hale of Richmond said this:

“142. … Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can. … 143. It follows that a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple’s relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based on their sexual orientation. … 144. I have used the term ‘marriage-like’ to describe the sort of relationship which meets the statutory test of living together ‘as husband and wife’. Once upon a time it might have been difficult to apply those words to a same sex relationship because both in law and in reality the roles of the husband and wife were so different and those differences were defined by their genders. That is no longer the case.”

[127]Lord Steyn and Lord Rodger of Eastferry also agreed with both Lord Nicholls and Baroness Hale (see paragraphs 37 and 103).

[128]Furthermore, although, as I have mentioned, I do not accept that the ECtHR in Karner resiled from, or went further than, the court had gone in Estevez, it did make observations which can be invoked to support the proposition that, at any rate if in doubt, a national court should lean in favour of treating as a family relationship a same sex relationship which, if it were heterosexual, would be a family relationship - see paragraphs 37, 40 and 41.

[129]I have expressed that conclusion in pretty broad terms, although the observations in Kebilene, Mahmood and Daly, and indeed general principle, might fairly be said to suggest that one should normally approach such a question on a case by case basis. However, I find it very difficult to see how it is possible to decide the present case without determining whether for Article 8 purposes, at least in general, two persons in a same sex relationship should be treated as members of each other’s family where, if they were of opposite sexes, they would be members of each other’s family. As I see it, respect for the family under Article 8 in this country should either extend to such relationships or it should not. While I suppose that there could be an exceptional case, it appears to me very hard to justify as a matter of logic treating same sex relationships within Article 8 for some purposes and not for others. Further, such an approach would be very unlikely to result in a coherent series of decisions. The fact that, in some cases, discrimination against same sex relationships could be justified in no way impinges on the argument, because, if the discrimination is justified, it would not infringe Article 14 in any event.

[130]Accordingly, I would reject Mr Sales’s first argument. If M can otherwise bring herself within the ambit of Article 8, I do not consider that the fact that she is in a same sex relationship rather than a heterosexual relationship takes her outside Article 8. In my judgment, the margin of appreciation accorded to this court by the ECtHR coupled with the reasoning of the House of Lords in Fitzpatrick and Ghaidan should result, at least in general, in same-sex relationships being treated in precisely the same way as heterosexual relationships for the purpose of Article 8. Given that Mr Sales has, quite understandably, not advanced any justification (other than the need for time to change the law) for absent parents in a same sex relationship being treated differently from absent parents in a heterosexual relationship, his only remaining ground is that the difference in treatment between absent parents in a same sex relationship and absent parents in a heterosexual relationship so far as the assessment of child support is concerned does not fall within the ambit of Article 8 at all.

[131]Where a claim for discrimination is based on a difference in treatment in connection with liability for payment of, or with entitlement to receive, money, I think it is important to bear in mind the observations of Laws LJ in Carson at paragraph 28:

“In the present case I am clear that the provision of the Job Seeker’s Allowance and Income Support has not been made by the United Kingdom legislature and executive out of compliance with any actual or perceived positive obligation arising under Art. 8. Such positive obligations may arise where there is ‘a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life’ …. Recognised instances include circumstances where the criminal law is required to offer protection for family life against particular dangers …. But they cannot, in my judgment, extend to include whole swathes of a state’s social security system without embracing that system with the general duty vouchsafed for Art. 8.”

[132]In my judgment, however, in the present case these observations do not preclude M from succeeding on her Article 14 claim. The reason that the absent parent’s liability for child support is liable to be reduced by regulation 11 of the MASC Regulations was accurately summarised in this case by the Commissioner:

“Its purpose is, put crudely, to ensure that the [absent] parent’s family has enough to live on after child support maintenance has been paid. It operates as a kind of longstop to the formula. Its application is more favourable for a parent who is a member of a family.”

[133]In those circumstances, it appears to me to follow that the reduction in liability effected by regulation 11 is accorded for the purpose of ensuring that that absent parent’s new family is not so deprived of money that it is significantly detrimentally affected by the liability of the absent parent to pay child support. To my mind, it follows from this that M has made good her case that the relevant provision, of which she does not have the benefit because she is in a same sex, rather than a heterosexual, relationship, was enacted out of respect for family life, the family life in question being that of the absent parent and his/her new partner

[134]As to the remainder of the issues in M’s case, namely material difference in treatment, justification and remedies, I agree with the reasoning of Sedley LJ. However, I would like to add a little to what he has said on two points. First, there is the question of material difference in treatment. In that connection, Mr Sales relied on the reasoning in R (Purja and Others) -v- Ministry of Defence

[2004] 1 WLR 289

. In that case, the Court of Appeal held that a claim under Article 14 by former Gurkha soldiers failed, on the grounds that there was no true analogy between them and their chosen comparators, namely former British soldiers: see paragraph 60-65 per Simon Brown LJ and paragraphs 85 and 86 per Chadwick LJ.

[135]The retired Gurkha soldiers were complaining of discrimination on the basis that their pay and pension rights were substantially less beneficial than those of retired British soldiers. The Court of Appeal held that the characteristics of the two classes of soldiers were different in a number of respects, perhaps particularly the long periods of leave accorded to Gurkha soldiers but not British soldiers (see paragraph 62 of Simon Brown LJ’s judgment) so that the two classes were not properly comparable. Mr Sales argued that the discrimination complained of by M in relation to two aspects of the child support scheme is merely reflective of the fact that an absent parent in a same-sex relationship is treated differently under the child support scheme from an absent parent in a heterosexual relationship, so that, as in Purja, the two types of absent parent are not in the same category. Mr Sales also draws support from the reasoning in Wandsworth LBC -v- Michalak

[2003] 1 WLR 617

, where, at paragraphs 26-39, Brooke LJ concluded that secure tenants under the Housing Act 1985 could not invoke regulated tenants under the Rent Act 1977 as being proper comparators, and therefore as justifying a claim for discrimination under Article 14 on the grounds that surviving family members of secure tenants enjoyed less favourable succession than those of regulated tenants.

[136]In my judgment this argument effectively overlooks the nature of the complaint made by M in this case. Her argument, as advanced by Ms Monaghan, is not merely that an absent parent in a same-sex relationship should be treated the same as an absent parent in a heterosexual relationship in relation only to the two specific matters of which she complains under the child support scheme. Her contention is that the two classes of absent parent should be treated in exactly the same way, i.e. as having exactly the same rights and obligations, under all aspects of the child support scheme. Accordingly this is not a case where it is possible for the Secretary of State to invoke differences of treatment between the two classes under the child support scheme, other than the two differences of which specific complaint is made, because M contends that there should be no difference in treatment in any respect. In Purja and in Michalak the applicant did not argue that there should be no difference in treatment in any respect between, respectively, the employment terms of Gurkha soldiers and British soldiers, or between secure tenants and regulated tenants.

[137]As Ms Monaghan argued, this is not a case, unlike Purja or Michalak where it can be said that there are two separate schemes each of which has its own somewhat different sets of benefits and burdens. Further, this case involves discrimination of grounds of sexual orientation which is a type of discrimination (like that on grounds of race or gender or sex) where “the court will scrutinise intensely any reasons said to constitute justification” - per Lord Nicholls in Ghaidan at paragraph 19.

[138]The second point on which I would wish to add to what has been said by Sedley LJ is on the issue of the relief to be accorded to M. The effect of our conclusion is that, for the purpose of the secondary legislation relating to child support, an absent parent living in a same-sex relationship is to be treated, at least for purposes such as those in the present case, identically to an absent parent living in a heterosexual relationship. That appears to me to be a result which must logically follow from our reasoning, and, as was pointed out in argument, it will not redound to the benefit of every absent parent in a same-sex relationship.

[139]While this result is logical, and appears to be fair (once one accepts the premise, namely that there would otherwise be discrimination which falls foul of Article 14), I am concerned about the fact that it could be said indirectly to involve the court effectively rewriting, albeit only with regard to one specific aspect, the MASC Regulations. It appears to me that that is a course which the court should be very cautious about taking, even if satisfied, as in this case, that it is the only logically respectable way of giving effect to the Convention, the only alternative being to leave it to the legislature to sort out the problem.

[140]Nonetheless, with all the legal, technical and practical expertise and experience available to those instructing him, Mr Sales was not able to identify any problem which might arise as a result of this conclusion. Furthermore, having considered the MASC regulations, it does not strike me that it would be at all likely that the remedy which Sedley LJ has identified, and with which I agree, would be likely to wreak any unfairness or difficulty in practice, and that it is therefore justifiable to accord the remedy which he has identified.

Ms Langley’s case

[141]I agree with Sedley LJ, for the short reasons he gives, that the basis upon which the Commissioner decided against Ms Langley, namely the absence of any material similarity between her case and that of a similarly placed tenant whose former partner was of the same sex, cannot stand.

[142]However, I consider that Ms Langley nonetheless faces difficulties in establishing that she has a maintainable claim for infringement of Article 14. As already mentioned, a claim under Article 14 is not freestanding, and must be in some way linked to another freestanding Convention right. Her case in this connection is put on the basis of Article 1P1 or Article 8.

[143]The reliance placed by Mr Drabble, who appeared on behalf of Ms Langley, on Article 8, that appears to be arguable. Particularly in light of the reasoning in the judgment of Scott Baker LJ in Douglas -v- North Tyneside MBC

[2003] EWCA Civ 1847

(especially at paragraph 56) that is a point which I would prefer to keep open, unless it were necessary to decide it, which I do not believe that it is.

[144]Assuming that Ms Langley is able to establish that Article 14 is infringed, because regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987 could not have been invoked against her if her former partner had been a woman, I am of the view that it would have been inappropriate to have granted her any relief. I reach that conclusion in light of the decision and reasoning of this court in R (Hooper) -v- Secretary of State for Work and Pensions

[2003] 1 WLR 2623

, especially at paragraphs 160-163 (which in fact relate to one of the other appeals heard at the same time, namely R (Naylor) -v- Secretary of State).

[145]In that case, Mr Naylor’s complaint was that he was not entitled to a pension until he reached the age of 65, whereas, on otherwise precisely the same facts, had he been a woman, he would have been entitled to a pension from the age of 45. The Court of Appeal accepted that this represented discrimination of which he could properly complain pursuant to Article 14 (see paragraph 69) and that there was power to award him damages for any loss he suffered as a result of such discrimination (see paragraph 143).

[146]However, he was refused compensation. The Court of Appeal said this:

“162. … The fact that widows over 45 enjoyed a right to a pension until reaching the age of 65 was recognised an anomaly. Parliament decided to allow a transitional period until 9 April 2001 before bringing in the new regime …, but it does not follow from this that there was any justification for making equivalent payments to widowers. To have done so would merely have increased the size of those to whom anomalous payments were being made. This would not have achieved any legitimate aim. 163. For these reasons we do not consider that the principle of just satisfaction entitles Mr Naylor to extra-statutory payments equivalent to a widow’s pension ….”

[147]It seems to me that the facts of the present case equally demonstrate that, even if Ms Langley has a legitimate complaint of infringement of her Article 14 rights, she should receive no compensation. If Article 14 did apply, the court would have to decide whether the anomaly was that same-sex relationships fell outside the ambit of regulation 7(1)(c)(i), as the Secretary of State would contend, or whether, as Ms Langley would argue, the anomaly is that heterosexual relationships fall within it. In my judgment, that question could only be resolved one way. Quite apart from anything else, if Ms Langley’s contention were correct, it would in practice mean that regulation 7(1)(c)(i) was of no effect: it does not apply to same-sex relations, and in the case of every heterosexual relationship, anyone to whom it applied would be entitled to recover full compensation for having so applied. In other words, it would effectively be a dead letter.

[148]Once one concludes that any infringement of Article 14 would have arisen because the regulation did not extend to same-sex relationships, the basis for any party to a heterosexual relationship claiming compensation falls away. The proper complaint is that the regulation does not apply to same-sex relationships, not that it does apply to heterosexual relationships.

[149]In fact, although the point was only briefly touched on, it seems to me that a rather more elegant way of arriving at the conclusion that Ms Langley would not in any event be entitled to any remedy may well be that she could not in any event complain of an infringement of Article 14 for the reason given by Sedley LJ, namely that she cannot claim to be the “victim of [an] unlawful act” with s 7(1) of the 1998 Act.

Conclusion

[150]In the event, therefore, I would dismiss both appeals.

[151]In 2001 M was a mother living in a same sex relationship with another woman. Her two children lived with their father. Under the Child Support Scheme she was required to make payments for the maintenance of her children. The amount she had to pay was calculated according to a statutory formula set out in Regulations made under the empowering provisions of Schedule 1 of the Child Support Act 1991. Those regulations were the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI 1815, for present purposes the MASC Regulations.

[152]The first step in the procedure required by the regulations was to determine assessable income, that is to say net income less exempt income. Certain housing costs were treated as exempt income. The Schedule to the 1991 Act enabled the regulations to make special provision for absent parents “living together in the same household with another adult of the opposite sex” and the regulations did so. By defining “unmarried couple” as “a man and a woman who are not married to each other but are living together as husband and wife” (a definition also used in section 137 of the Social Security Contributions and Benefits Act 1992) the regulations were made to operate to the disadvantage of an absent parent living with a partner of the same sex, as compared with an absent parent living with a partner of the opposite sex. That disadvantage operated both in the calculation of assessable income and in the calculation of exempt income. For present purposes the detail does not matter. It is not in dispute.

[153]Before the Commissioner counsel for M submitted that although the disparity to which I have just referred did not amount to a breach of

Article 8 of the European Convention on Human Rights

it did come within the ambit of Article 8, and within the ambit of Article 1 of Protocol One to the extent necessary to enable M to rely upon Article 14. The Commissioner accepted that submission only in relation to Article 8, and on behalf of the Secretary of State it is now contended that he was wrong to do so. For M Ms Monaghan contends that the Commissioner should have also have accepted the submission in relation to Article 1 of Protocol One.

[154]Article 8(1) states that - “Everyone has the right to respect for his private and family life, his home and his correspondence.” The Commissioner held, at paragraph 41 of his decision, that a same-sex relationship is capable of falling within the meaning of “family” for the purposes of Article 8. Ms Monaghan, whilst seeking to uphold the Commissioner, submits that if he was mistaken as to family then he should have considered “family life” or the ambit of Article 1 Protocol One.

[155]Mr Sales, for the Secretary of State, submits that the European Court has constantly declined to hold that same sex partners fall within the scope of family life, and that the Commissioner failed to give sufficient weight to this line of authority which has been recognised by the House of Lords, and which still exists.

[156]Logan v UK [1996] 22 EHRR CD 178 was a father’s challenge to the level of maintenance payments determined by the Child Support Agency, which was held by the European Commission to be inadmissible. As Ms Monaghan points out, it was part of the government’s case that the CSA is intended to protect family life, and the Commission was considering the direct application of Article 8 rather than its ambit, but its conclusion at CD 181 was quite clear, namely - “that the relevant legislation, in so far as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life.”

[157]In Burrows v UK application No. 27558/95 a separated father complained of the sudden increase in the amount he was required to pay by way of maintenance, which, he said, impacted upon his second family and was discriminatory, contrary to Article 14. The Commission referred to its decision in Logan and continued - “In the light of the factual information provided by the applicant regarding his income and his expenses, the Commission does not consider that the applicant has shown that the effect of the operation of the legislation in his case is of such a nature and degree as to disclose any lack of respect for his rights under Article 8.”

[158]Petrovic v Austria

[2001] 33 EHRR 307

is a decision of the European Court concerning a father’s right to parental leave allowance, and it is a decision on which Miss Monaghan places some reliance. The applicant sought to rely on Article 14 taken together with Article 8, and at paragraph 26 the court accepted that the refusal to pay the allowance could not amount to a failure to respect family life since that Article did not impose any positive obligation on States to provide the financial assistance in question. Nonetheless it was said, at paragraph 29, that 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.” But of course the relationship in Petrovic was heterosexual, and the decision casts no direct light on the issue with which I am at this stage concerned.

[159]In Fitzpatrick v Sterling Housing Association

[2001] 1 AC 27

the House of Lords was concerned with the right of the homosexual partner of a protected tenant to succeed to the tenancy, and at 40A Lord Slynn noted that the European Court had not so far accepted claims by same sex partners to family rights. Lord Clyde and Lord Hobhouse made observations to the same effect, but it was held that for the purposes of the Rent Act where the word family was undefined, a same sex partner of a tenant could be regarded as a member of the tenant’s family. At 44C Lord Nicholls said - “Where sexual partners are involved, whether heterosexual or homosexual, there is scope for the intimate mutual love and affection and long-term commitment that typically characterised the relationship of husband and wife. This love and affection and commitment can exist in same sex relationships as in heterosexual relationships. In sexual terms a homosexual relationship is different from a heterosexual relationship, but I am unable to see that the difference is material for present purposes. As already emphasised, the concept underlying membership of family for present purposes is sharing of lives together in a single family unit living in one house.” But of course we are not concerned with the Rent Act legislation, and the statutory provisions with which we are concerned do contain definitions which are not in any way ambiguous.

[160]Mata Estevez v Spain application 00056501/00 also concerned a homosexual relationship. One partner died in a road accident and the surviving partner claimed social security allowances as a surviving spouse. When refused he relied on Articles 8 and 14, so the court was directly concerned with the question of ambit, and at page 4 it said - “According to the established case-law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by

Article 8 of the Convention

.” That is absolutely clear, and the court went on to recognise that there is a growing tendency for States to grant legal recognition to stable partnerships between homosexuals. Because there is little common ground that is an area in which States “still enjoy a wide margin of appreciation”. Ms Monaghan submitted that even if there is little common ground in Europe Fitzpatrick shows what the position is or ought to be in English law.

[161]Wandsworth LBC v Michalak

[2003] 1 WLR 617

was also concerned with succession to a tenancy. There was no sexual relationship, but the claimant had lived in the premises, and said that he was entitled to respect for his home. That enabled him to say that he was within the ambit of Article 8, but it is worth noting that his attempt to invoke Fitzpatrick failed (see paragraph 31) and at paragraph 35 Lord Justice Brooke said - “Even if it was open to us to hold that a person as distantly related as Mr Michalak was to Mr Lul would now be treated as a member of Mr Lul’s family in a Rent Act context - and therefore entitled to a successor tenancy - there are too many differences between the regimes for protected/statutory tenancies under the Rent Act 1977 and secure tenancies under the Housing Act 1985 for us to be satisfied that the chosen comparator was in a relatively similar situation.” In other words, in the context of the present case, it is necessary to look carefully at the statutory scheme with which we are in fact concerned.

[162]In R (Carson) v Secretary of State [2003] 3 All E R 577 the claimant complained that because she lived abroad her state retirement pension was not increased annually as it would have been if she had remained in the United Kingdom. Reynolds, whose appeal was heard at the same time, was a job-seeker whose allowance was less because she was under 25 years of age. Both sought to invoke Article 14. Reynolds claimed that she was subjected to financial hardship, and so fell within the ambit of Article 8 although she did not complain of any violation of the Article read on its own. At paragraph 26 Laws LJ said - “It is in my judgment important to recognise that on the Strasbourg learning Article 8 does not require the state to provide a home … nor does it impose any positive obligation to provide financial assistance to support a person’s family life or to ensure that individuals may enjoy family life to the full or in any particular manner.” At paragraph 29 Laws LJ said - “I do not mean to belittle her undoubted difficulties, but it is clear that like difficulties are common to many people in receipt of benefit. Mr Gill’s submission, if correct, would in principle subject the general welfare provisions made by the state to the requirements of Article 8 and of Article 14 read with Article 8. That is not the law.” Mr Sales submits that likewise schemes to ensure that children are properly maintained fall outside the reach of article 14 read with Article 8.

[163]Karner v Austria [2003] 14 BHCC 674 was another claim to the succession of a tenancy by the long term same-sex partner of the deceased. The relevant Austrian Rent Act gave a right of succession to a “life companion” and the Supreme Court held that not applicable to a homosexual relationship. The applicant relied on Article 14, taken together with Article 8, and the European Court refused to strike out the application. At paragraph 33 it said - “The court has to consider whether the subject matter of the present case falls within the ambit of Article 8. The court does not find it necessary to determine the notions of ‘private life’ or ‘family life’ because, in any event, the applicant’s complaint relates to the manner in which the alleged difference in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under

Article 8 of the Convention

.” Article 14 was held to apply, and to have been violated. But of course in the present case we are not concerned with M’s right to respect for her home.

[164]That brings me to the relatively recent decision of this court in Douglas v North Tyneseide MBC

[2003] EWCA Civ 1847

which concerned student loans for higher education. The claimant, aged 58, was too old to be eligible under the relevant regulations, and submitted that the age barrier contravened Article 14, read together with the right to education in Article 2 of the first Protocol. That submission failed. Scott Baker LJ at paragraph 55 set out the argument of the Secretary of State as to the purpose of the regulations, saying- “They are not to do with the right to education. Their purpose, as is set out in the evidence, is to encourage greater access to higher education primarily for students wishing to improve their skills and qualifications. The purpose of encouraging access to higher education by offering student loans is primarily to improve the skills and qualifications of the work force. The right protected by Article 2 is the right to avail oneself of such education as the State provides, that is to participate in the facilities existing at a given time. The funding arrangements are not within that right.” That argument was accepted, and Mr Sales submits that a similar cautious approach to funding arrangements should be adopted in this case.

[165]Finally in relation to the question of the ambit of family life I turn to Ghaidan v Godin-Mendoza

[2004] UKHL 30

, where the House of Lords concluded that the homosexual surviving partner of a deceased protected tenant was entitled to succeed to the tenancy, not simply as an assured tenant because he was a member of the family, but as a surviving spouse. Lord Nicholls at paragraph 11, noted judicial differences of opinion as to how to approach the question of the ambit of any article relied upon as a gateway to Article 14, but he did not have to deal with those differences because it was common ground that paragraph 2 of schedule 1 to the Rent Act 1977 was a provision within the ambit of the right to respect for a person’s home guaranteed by Article 8, and therefore Article 14 was engaged. He went on to hold that in the context of succession to a tenancy there was no ground for maintaining any distinction between a homosexual and a heterosexual couple.

[166]That review of the authorities seems to me to demonstrate that Mr Sales is right in his submission that M cannot rely on the words “family life” in Article 8 in order to say that the facts of her case fall within the ambit of that Article.

[167]Of course that would not matter if she could rely on any other part of the Article. In this case it is not seriously contended that the levying of child maintenance payments demonstrates a lack of respect for her home, but it is said that the payments impact upon her private life. In that context Ms Monaghan invited our attention to Lustig-Prean and Beckett v UK

[1999] 29 EHRR 548

, where the applicants had been discharged from the Navy on the grounds of homosexuality, but the passages to which we were referred were really concerned whether intrusive questioning was justified. They do not seem to me to assist in relation to the ambit of the Article in a child support case. I accept, of course, that M’s relationship with her partner was an aspect of her private life, but it is worth recognising that under the regulation she was not penalised because of that relationship. Her position would have been the same if she and her partner had lived together without there being any sexual relationship between them. Her real complaint is that under the regulations she could not take advantage of a benefit available to a certain limited category of absent parents simply because she did not fall into that limited category.

[168]I therefore conclude that she has failed to show that the facts of this case come within the ambit of Article 8 to the extent necessary to engage Article 14.

[169]There remains for consideration the ambit of Article 1 of Protocol One, which reads - “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

[170]It seems to me that the child support scheme is an example of the state enforcing laws it deems necessary to control the use of property in accordance with a general interest, or to secure other contributions. In Burrows (supra) where the applicant complained of the size of the contributions required of him under the child support scheme, as opposed to its predecessor, the Commission said at pages 6 to 7 - “the deprivation of property referred to in the second sentence of Article 1 of Protocol One is primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of rights between persons under private law unless the State lays hands – or authorises a third party to lay hands – on a particular piece of property for a purpose which is to serve the public interests…. The Commission therefore doubts that there has been a deprivation of property within the meaning of the second sentence of Article 1 of Protocol One, no property having been taken from the applicant by the state to serve a public purpose. However, in view of the active role played by the State in assessing and collecting child maintenance under the Child Support Act 1991 and taking into account the fact that A was effectively obliged to request a maintenance assessment in respect of the applicant, since had she refused or failed to do so her social welfare benefits would have been removed, the Commission will assume that for the purposes of this application that there was an interference in the applicant’s peaceful enjoyment of his possessions as provided by the first sentence of Article 1of Protocol No One.” Clearly that was no more than an assumption contrary to the Commission’s own expressed doubts.

[171]In Carson (supra) Laws LJ at paragraphs 32 to 50 examined the reach of Article 1 Protocol One, and at paragraph 47 to 48 he said - “The law of the Convention is settled on this point as to the scope of ‘possessions’ for the purpose of Article 1 Protocol One. The policy of the cases is, I think, that while States are in general free to grant, amend or discontinue social security benefits and to change the conditions for entitlement to them as they please without any Convention restraint, yet where contributions are exacted as a price of entitlement the contributor should be afforded a measure of protection; it has, so to speak, cost him something to acquire the benefit. This approach throws much needed light on the scope of Article 14 read with Article 1 Protocol One, which as I have explained has caused me considerable difficulty. We can now see that the Strasbourg court has treated the payment of contributions as giving rise to a species of pecuniary right, such as to constitute a ‘possession’ for the purpose of Article 1 Protocol One. A reduction or qualification of the right to be paid the benefit thus engages Article 1 Protocol One, although it may not amount to a violation of the Article simpliciter because the Convention confers no right to receive any particular amount. However, the reduction or qualification is subject to the constraints of Article 14: if it is done on discriminatory grounds the discrimination must be justified.”

[172]The situation in the present case is not entirely analogous. We are not concerned with contributions giving rise to pecuniary rights, merely with the allocation of assets to discharge an existing obligation, and, as Mr Sales submits, the logical extension of Ms Monaghan’s submission is that any net adverse financial impact upon her client constitutes a prima facie deprivation of her possessions. If that were right there would appear to be almost no limit to the circumstances in which Article 1 Protocol One would be sufficiently engaged for the purposes of Article 14, and that I cannot accept.

[173]I therefore conclude that in the case of M no reliance can be placed on Article 14 because neither Article 8 nor Article 1 Protocol One are sufficiently engaged. It may be that there should be an independent right to relief against discrimination, as has been proposed, but in this context it does not yet exist, and so long as threshold requirements do exist they must be overcome. That conclusion makes it unnecessary for me to consider the other matters raised in this case, such as whether heterosexual couples are analogous within the wider benefit system, or whether the discrimination relied upon is justified. In the case of M, for the reasons I have given, I would allow the appeal of the Secretary of State.

[174]Ms Langley is a woman who had been in a heterosexual relationship. When it ended she remained in the former home. Her partner left and she paid rent to him. She was held by the local authority not to be entitled to Housing Benefit because Regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987, so far as material, provides - “A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where - (c) his liability under the agreement is - (i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners.” “Partner” is defined in Regulation 2(1) unless the context otherwise requires as meaning - “Where a claimant is a member of a married or unmarried couple, the other member of that couple.” “Married couple” and “unmarried couple” are defined by reference to section 20(11) of the Social Security Act 1986, now re-enacted as section 137(1) of the Social Security Contributions and Benefits Act 1992, which, so far as material, provides - “’Unmarried couple’ means a man and a woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.” (c) his liability under the agreement is - (i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners.” “Where a claimant is a member of a married or unmarried couple, the other member of that couple.” “’Unmarried couple’ means a man and a woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.”

[175]Regulation 7(1)(c)(i) is a Regulation made under section 137(2)(i) of the 1992 Act (originally to be found in section 20(12)(h) of the 1986 Act) which provides for regulations to be made - “For treating any person who is liable to make payments in respect of a dwelling as if he were not so liable.”

[176]Ms Langley complains of discrimination. She would not have been treated in the same way if her former partner had been a woman, and that, she submits, violates her Convention rights under Article 14 read with Article 8(1). She failed before the Commissioner on the basis that as regulation 7 is an anti-abuse provision it should not be read as being necessarily discriminatory, and the Commissioner cited Fredin v Sweden

[1991] 13 EHRR 784

[177]For the purposes of this appeal it is logical to look first at the issue raised by the Respondent’s Notice, namely the ambit of Article 8. As to that the Commissioner said - “The Housing benefit scheme is a means by which the State shows respect for a claimant’s home and family life. It provides financial support from public funds to allow the claimant to retain or obtain a dwelling in which to establish or maintain a home and, in the home, a family. That is sufficient for the circumstances of this case to come within, at least, the ambit of the Convention right in Article 8(1)” He went on to refer to Petrovic v Austria (supra). Mr Sales submits that the conclusion of the Commissioner as to the ambit of Article 8 was mistaken, whereas Mr Drabble QC for L submits that the Commissioner was correct.

[178]Mr Drabble submitted that the provisions with which we are concerned clearly fall within the ambit of Article 8. The underlying aim is to enable a person of limited means to remain in the family home, and, adopting the approach used by the European Court in Petrovic, the payment of benefits to enable the former partner to remain is the way that the state shows respect for the home.

[179]Mr Sales submits that when considering Article 8 it is important to distinguish between on the one hand action which deprives someone of their home and, on the other hand, making state funding available to enable a person to get a home or to stay in a home. When funding is made available it is, he submits, outside the ambit of Article 8. In Petrovic the European Court was considering a specific scheme which was closely allied to its object, namely to promote family life. In the present context it is important to recognise at the outset that there is no obligation on the state to provide any person with a home or with funding for that purpose, as was pointed out by Laws LJ in paragraph 26 of his judgment in Carson cited above. It is not, Mr Sales submits, enough for Ms Langley to show that if benefit is withheld that may or even will affect her ability to remain in her home. In any given case that may or may not be the result of the payment or withholding of benefit, and the approach we should adopt to this particular benefit should be broadly the same as that adopted by this court to student loans in Douglas (supra). In that case Scott Baker LJ said at paragraph 56 - “The Student Support Regulations do not prevent or hamper any individual from undertaking any of the higher education courses that are available; nor are they aimed at doing so. Indeed they are aimed at making it easier for some individuals to obtain a further skill. In some cases the opportunity to obtain a student loan will make all the difference, but in other cases it will make no difference at all. The way it is put by (counsel) is that the Secretary of State’s funding arrangements do not ‘necessarily affect’ the ability of the claimant or others to attend the existing institutions that are available within the state. ” Mr Sales submits that the same can be said of the relationship between housing benefit and the acquisition or retention of a home.

[180]In my judgment Mr Sales is right. The particular housing benefit with which we are concerned falls outside the ambit of Article 8 because there is no obligation to provide the benefit and its provision is not the state demonstrating its respect for a claimant’s home in the way that parental leave allowance was held to demonstrate respect for family life. I reach this conclusion without regret because it seems to me to be important that the adjustment of the details of anti-abuse provisions in relation to a state benefit should so far as possible remain for scrutiny and re-consideration by Parliament and not by the courts. My conclusion in relation to the ambit of Article 8 makes it unnecessary to for me to consider Mr Drabble’s other grounds of appeal, because if I am right in my conclusion his appeal cannot succeed.

[181]For the reasons I have given I would allow the appeal of the Secretary of State in the case of M and dismiss the appeal of Ms Langley.

ORDER

Appeal Dismissed (Order does not form part of the approved Judgment)

Secretary of State for Work & Pensions v M [2004] EWCA Civ 1343

The legislative schemes

Housing benefit

The proceedings so far

The issues

The general law

Family life: M’s present relationship

Is there a material difference in treatment?

Justification

Remedies

M’s case

M’s case

Ms Langley’s case

Conclusion

ORDER

Cited in 8 later judgments