Hand & Anor v George [2017] EWHC 533 (Ch)

Case No HC-2016-000146[2017] EWHC 533 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE MATTER OF THE HENRY FREDERICK HAND WILL TRUST
Venue Royal Courts of Justice, The Rolls Building, London, EC4A 1NLDate 17 March 2017
Before
MRS JUSTICE ROSE
Between
(1) DAVID JOHN HANDClaimants(2) HILARY JANE CAMPBELLClaimant
Between
RICHARD GEORGEDefendants
JONATHAN MILLER (instructed by Carpenter and Co) for ClaimantsJOSH LEWISON (instructed by Birketts Solicitors) for DefendantsHearing Hearing dates: 1 November 2016 and 3 March 2017
Judgment
[1]Henry Hand died on 9 June 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to such of their child or children who attained the age of 21, if more than one then in equal shares. The question that has arisen in this claim is whether adopted children count as “children” for the purposes of this will. The Claimants, who are the adopted children of Kenneth Hand, accept that under the domestic law in force, they are not included and their father’s share of the Henry Hand trust would go to the Defendants, who are their cousins. However, the Claimants say that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The Defendants are the birth children of Joan George and the trustees of the Henry Hand trust. They stand to inherit if the law treats Kenneth Hand as having died without children. They argue that if Henry Hand had wanted to include adopted grandchildren as potential beneficiaries then he could have done so. Instead he used wording in his will which at the time he made the will excluded adopted children. They deny that the Claimants are entitled to rely on the Convention to achieve a different result. They say that there is no justification for applying the Convention to interpret an instrument that was drawn up before the Convention was even drafted. To allow the Claimants to inherit would subvert the intention of the testator.[2]Gordon Hand died on 15 July 1975 without any children. His one third share went to his brother and sister, Kenneth and Joan, half each for life and the remainder of each half to such of their children who attained the age of 21 and if more than one in equal shares. Joan George died on 24 August 1981 and the remainder interest in her now half of Henry’s estate vested in the Defendants, Elizabeth Stanhope (known as Carolyn) (born on 22 December 1939) and Richard George (born on 5 March 1942). Kenneth Hand died on 17 August 2008. He was survived by David Hand and Hilary Campbell, the Claimants. David was born on 16 September 1947 and adopted by Kenneth and his wife on 5 March 1948. Hilary was born on 22 December 1949 and was adopted on 9 June 1950.[3]The relevant clause in Henry Hand’s will is clause 6 which reads:
“.......my Trustees shall hold my residuary estate upon trust (a) as to one equal third part thereof (hereinafter called “Kenneth’s Share”) to pay the income thereof to my said son Kenneth Oliver Hilliary Hand during his life and on his death as to both capital and income thereof for his child or children who attain the age of twenty one years (subject to the proviso hereinafter contained) and if more than one in equal shares but if there be no such child then I declare that (subject to his life interest therein) my Trustees shall stand possessed of Kenneth’s Share...”
[4]The rest of the clause makes clear that if Kenneth has no children, then his share goes on his death to Gordon and Joan.[5]All the parties gave evidence at the short trial of this claim before me. All four witnesses were clearly truthful and sincerely believe that the disposition of the estate for which they contend would be fair and appropriate. Their evidence focused on two matters. The first was that after Kenneth’s death the solicitors for the Trust initially accepted that the Claimants should inherit Kenneth’s share of Henry’s estate and only later apparently changed their minds and argued that they could not inherit because they are adopted. The second related to what contact David and Hilary had had with their relatives over the years; whether they were ‘treated as part of the family’ or not. I do not consider that either of these factual matters is relevant to the decision I have to make. There is no basis for requiring the Defendants to adhere to their initial view of the Claimants’ entitlement, now that they contend that as a matter of law that view was mistaken. Further, there is no basis for regarding adopted children’s rights as dependent in some way on how many holidays they spent with their relatives or how many Christmas cards they wrote, when the birth children do not have to prove any such connection to claim their entitlement. The question before me is a pure matter of law.[1]The domestic law on adoption[6]At the time Henry Hand wrote his will in 1946, the law relating to adoption was set out in the Adoption of Children Act 1926 (‘the 1926 Act’). The 1926 Act provided broadly that a child remained the child of his or her birth parents rather than becoming in law the child of their adoptive parents. Section 5(2) dealt with an adopted child’s entitlements to the estate of his natural and adoptive parents:
“5(2) An adoption order shall not deprive the adopted child of any right to or interest in property to which, but for the order, the child would have been entitled under any intestacy or disposition, whether occurring or made before or after the making of the adoption order, or confer on the adopted child any right to or interest in property as a child of the adopter, and the expressions "child," "children" and "issue" where used in any disposition whether made before or after the making of an adoption order, shall not, unless the contrary intention appears, include an adopted child or children or the issue of an adopted child.”
[7]That is the provision that was in effect at the date when David was adopted. This position was reversed by the Adoption of Children Act 1949 (‘the 1949 Act’) which provided that adopted children are treated as the children of their adopters and not of their birth parents: “9.-(1) The provisions of this and the next following section shall have effect for securing that adopted persons are treated as children of the adopters for the purposes of the devolution or disposal of real and personal property. … (3) In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order-(a) any reference (whether express or implied) to the child or children of the adopter shall be construed as, or as including, a reference to the adopted person;(b) any reference (whether express or implied) to the child or children of the adopted person's natural parents, or either of them shall be construed as not being, or as not including, a reference to the adopted person; and(c) any reference (whether express or implied) to a person related to the adopted person in any degree shall be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person, unless the contrary intention appears. … (5) References in this section to an adoption order shall be construed as including references to an adoption order made before the date of the commencement of this Act; but nothing in this section shall affect the devolution of any property on the intestacy of a person who died before that date, or any disposition made before that date.” (a) any reference (whether express or implied) to the child or children of the adopter shall be construed as, or as including, a reference to the adopted person; (b) any reference (whether express or implied) to the child or children of the adopted person's natural parents, or either of them shall be construed as not being, or as not including, a reference to the adopted person; and (c) any reference (whether express or implied) to a person related to the adopted person in any degree shall be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person, …[8]Thus at the end of section 9(5) there were two temporal restrictions on the application of the 1949 Act, the will had to be made after the adoption order and the disposition had to be made before the commencement of the 1949 Act. Neither of those conditions is satisfied here. That was the provision that was in effect in 1950 when Hilary Campbell was adopted.[9]The Adoption Act 1976 (‘the 1976 Act’) also provides that an adopted child shall be treated in law as the child of the adopter and not the child of any other person. Section 39 provides: “(1) An adopted child shall be treated in law—(a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnized);(b) in any other case, as if he had been born to the adopter in wedlock (but not as a child of any actual marriage of the adopter). (2) An adopted child shall, subject to subsection (3), be treated in law as if he were not the child of any person other than the adopters or adopter.” (a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnized); (b) in any other case, as if he had been born to the adopter in wedlock (but not as a child of any actual marriage of the adopter).[10]Section 39(5) and (6) of the 1976 Act deals with the temporal application of the status:
“39(5) This section has effect— (a) in the case of an adoption before 1st January 1976, from that date, and (b) in the case of any other adoption, from the date of the adoption. (6) Subject to the provisions of this Part, this section— (a) applies for the construction of enactments or instruments passed or made before the adoption or later, and so applies subject to any contrary indication; and (b) has effect as respects things done, or events occurring, after the adoption, or after 31st December 1975, whichever is the later.” (a) in the case of an adoption before 1st January 1976, from that date, and (b) in the case of any other adoption, from the date of the adoption. (a) applies for the construction of enactments or instruments passed or made before the adoption or later, and so applies subject to any contrary indication; and (b) has effect as respects things done, or events occurring, after the adoption, or after 31st December 1975, whichever is the later.”
[11]However, this is subject to a transitional provision in Schedule 2 to the 1976 Act:
“6 (1) Section 39— (a) does not apply to an existing instrument or enactment in so far as it contains a disposition of property, and (b) does not apply to any public general Act in its application to any disposition of property in an existing instrument or enactment.” (a) does not apply to an existing instrument or enactment in so far as it contains a disposition of property, and (b) does not apply to any public general Act in its application to any disposition of property in an existing instrument or enactment.”
[12]An existing instrument is one that was made before 1 January 1976: see section 72(1) of the 1976 Act. This therefore prevents the interpretation provision from applying to Henry Hand’s will.[13]The Adoption and Children Act 2002 repealed much of the 1976 Act but did not repeal sections 36-49 or paragraph 6 of Schedule 2. It contains parallel provisions to the 1976 Act but applies only to children adopted after it came into force on 30 December 2005.[14]The parties are agreed therefore that if the matter were to be settled on the basis of domestic law alone, the claim would fail.[2]The Convention provisions and the case law of the European Court of Human Rights[15]Article 8 of the Convention provides:
“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.”
[16]Article 14 provides:
“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.”
[17]Article 1 of the First Protocol to the Convention provides:
“Every natural and 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 … 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 …”
[18]The starting point for the case law on the application of the Convention to adopted and illegitimate children is Marckx v Belgium (appn No 6833/74, judgment of 13 June 1979) (‘Marckx’). Ms Alexandra Marckx was the illegitimate child of Paula Marckx. She was later adopted by her mother. She complained that the Belgian Civil Code’s treatment of the maternal affiliation of illegitimate children was discriminatory since no legal bond existed between an unmarried mother and her child unless the mother voluntarily recognised the child or some other legal proceedings resulted in that recognition. Even a recognised illegitimate child’s rights to inheritance on an intestacy were less than those of a legitimate child.[19]The European Court of Human Rights (‘ECtHR’) held that Article 8 of the Convention, by guaranteeing the right to respect for family life, presupposes the existence of a family. Article 8 makes no distinction between legitimate and illegitimate family and such a distinction would be inconsistent with the word ‘Everyone’ at the start of Article 8. The Court went on to hold that compliance with Article 8 does not merely compel the State to abstain from interference with family life but may impose positive obligations “inherent in an effective “respect” for family life”.[20]The ECtHR found that the Belgian law contravened the Convention because it resulted in a lack of respect for the family life of Alexandra Marckx who in the eyes of the law was motherless in the period between her birth and her recognition by her mother. The Court rejected an argument that the discrimination was objective and reasonable as favouring the traditional family.[21]The Belgian Government raised the point that the provisions of the Belgian Code under challenge predated the Convention. The ECtHR said this in response: “41. … It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the "illegitimate" and the "legitimate" family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, para. 31). In the instant case, the Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim "mater semper certa est”.[22]The distinction drawn in the Belgian Code therefore lacked objective or reasonable justification:
“48 . … The Court discerns no objective and reasonable justification for the differences of treatment now being considered. Admittedly, the "tranquillity" of "legitimate" families may sometimes be disturbed if an "illegitimate" child is included, in the eyes of the law, in his mother’s family on the same footing as a child born in wedlock, but this is not a motive that justifies depriving the former child of fundamental rights.”
[23]The Belgian Government argued, further, that although the position had to be corrected, reform should be effected by legislation and without retrospective effect: paragraph 58. If the ECtHR were to find that the Belgian Code was contrary to the Convention, this would mean that these rules had been contrary to the Convention since its entry into force in respect of Belgium on 14 June 1955. The result would render many distributions of estates irregular and open to challenge before the courts. The ECtHR held that that would not be the effect of the ruling. The Court’s judgment was ‘essentially declaratory’ and leaves open to the State the choice of how to rectify the position. But the Court also held that the principle of legal certainty, which is necessarily inherent in the law of the Convention, avoids the need for the Belgian State to re-open ‘legal acts or situations’ that antedate the delivery of the judgment.[24]The principal authority on the application of the Convention to adopted children is Pla and Puncernau v Andorra (Appn no 69498/01 judgment of 13 July 2004) (‘Pla’). Simplifying the facts a little, the first applicant, Mr Pla was the adopted son of the second applicant Mrs Puncernau. Under her will made in 1949, the testatrix left her estate to her son as tenant for life with the stipulation that he was to transfer the estate to a son or grandson of a lawful and canonical marriage. If those conditions were not met, the will provided that the estate pass to other relatives. The son did marry and later adopted a child, the first applicant. The son left a will leaving the estate that he had inherited under his mother’s will to his adopted son. The children who would inherit if the estate could not pass to an adopted child applied to the Andorran court to set aside the bequest. The Andorran court stated that it had to interpret the will in accordance with the intention of the testatrix in 1949. At that time adoption had been unknown in Andorra and there had been no relevant legislation in place. The court therefore referred to Andorran customary law and applying that law held that an adopted child was included in the bequest. On appeal, the Andorran appeal court set the judgment aside. The appeal court agreed that the question had to be resolved in accordance with the legal rules on the relationship of adopted children to their adoptive parents at the time the will was made. However, they interpreted the prevailing law as being to the opposite effect so that the testamentary gift excluded adopted children. A further appeal to the Constitutional Court was declared inadmissible.[25]The ECtHR in Pla confirmed the decision in Marckx that the right of succession between children and parents and between grandchildren and grandparents is so closely related to family life that it comes within the sphere of Article 8: paragraph 26. The Court was well aware of the difference between the issues raised by Mr Pla and the issues raised in the earlier cases. Marckx and similar cases arose from complaints that domestic legislation had discriminated against some children. In Pla there was no problem with Andorran legislation; the problem lay in the interpretation of a testamentary disposition in accordance with Andorran law. The ECtHR emphasised that it is for national courts to construe and apply domestic law. This was all the more so when considering an eminently private instrument such as a clause in a person’s will since “the domestic courts are evidently better placed than an international court to evaluate, in the light of local legal traditions, the particular context of the legal dispute submitted to them and the various competing rights and interests”. The ECtHR confirmed that when ruling on disputes of this type, the courts have a wide margin of appreciation so that:
“an interference with private and family life could only arise under the Convention if the national courts’ assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.”
[26]The ECtHR rejected the Government’s contention that the issue in the case related to the free will of the testatrix. Rather the sole issue was whether the notion of ‘son’ in the will extended only to biological sons. On this point the ECtHR disagreed with the conclusion of the appellate court. “59. Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Larkos v. Cyprus [GC], no. 29515/95, §§ 30-31, ECHR 1999-I).”[27]The ECtHR noted that the testamentary disposition as drafted by the testatrix made no distinction between biological and adopted children and held that “it was not necessary to interpret it in that way”. Such an interpretation therefore amounted “to the judicial deprivation of an adopted child’s inheritance rights”. In an important passage, the Court held that there was no objective or reasonable justification for the discrimination:
“62. The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for States, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights (…). Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix’s death, namely in 1939 and 1949, particularly where a period of fifty-seven years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills: any interpretation, if interpretation there must be, should endeavour to ascertain the testator’s intention and render the will effective, while bearing in mind that “the testator cannot be presumed to have meant what he did not say” and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court’s case-law.”
[28]The ECtHR held that there had been a violation of Article 14 of the Convention in conjunction with Article 8.[29]More recently Article 14 in conjunction with Article 8 has again been applied to the rights of inheritance of an illegitimate child in Brauer v Germany (Appn 3545/04 judgment of 28 May 2009). The Claimant Ms Brauer was the illegitimate daughter of a woman living in the territory of the former German Democratic Republic. Her father lived in the Federal Republic of Germany. She wanted to enforce her rights to inherit from the estate of her father. Before the ECtHR the German Government accepted that there was a difference in treatment between legitimate and illegitimate children born before 1 July 1949 depending on whether the father had been resident in the GDR before Reunification. They argued however that the difference was justified. They referred to the heated debates that had surrounded the gradual harmonisation of the treatment of legitimate and illegitimate children. The intention of the legislature in setting the 1 July 1949 cut-off date had been to preserve legal certainty and any legitimate expectation that the deceased and their families might have had that the exclusion of illegitimate children would be maintained. The ECtHR rejected these arguments. It recognised that the aim of preserving legal certainty and the protection of the deceased and his family was ‘arguably a legitimate one’. But the Court said that German society had evolved since then. Given the “dynamic interpretation” that must be given to the Convention, the need to protect the “legitimate expectation” of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage.[30]The ECtHR has also considered the application of Article 1 of Protocol 1 (‘A1P1’) to the inheritance rights of illegitimate children in Fabris v France (Appn 16574/08 judgment of 7 February 2013). Again simplifying the facts, that case concerned the inheritance of the applicant who was the illegitimate son of a woman who had, at the time of his birth, been married to someone else with whom she had a son and a daughter. In 1970 the mother made an inter vivos division of her property between her two legitimate children excluding the claimant. That gift would take effect on her death, subject to any claim for abatement made by another child within five years of the mother’s death. In 1983 the claimant was declared to be the illegitimate child of the mother. When the mother died in 1994, the claimant brought an action in 1998 to abate the inter vivos gift. But because he was a child ‘born of adultery’, his abatement action could only result in him inheriting half the share that he could have claimed if he had been a legitimate child. Between the time when the claimant commenced his action and the time when the mother’s estate came to be divided, French law was changed following the judgment of the ECtHR in Mazurek v France (appn 34406/97 judgment of 1 February 2000) which had condemned the relevant French provisions as an infringement of the Convention. The new law ensured that children ‘born of adultery’ could share equally in their parent’s estate. However, the new law was subject to transitional provisions which stipulated that the new law could not operate to the detriment of inter vivos gifts that had been granted prior to the date on which the new law came into force. The French Court of Cassation held that the effect of the transitional provisions in the 2001 law meant that the change did not help the claimant.[31]The ECtHR first heard the case sitting in a chamber of seven judges and gave judgment on 21 July 2011 upholding the application of the transitional provisions. The Chamber dealt with the matter under Article 14 in conjunction with A1P1 rather than Article 8. It held that the Court de Cassation’s interpretation of domestic law pursued the legitimate aim of safeguarding the principle of legal certainty and the long-standing rights of the legitimate children. Moreover, they did not appear unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination.[32]The matter was then referred to the Grand Chamber of the Court. The Grand Chamber first held that the applicant’s pecuniary interests fell within the scope of A1P1. They then referred to the earlier case law and concluded that the Court has ‘constantly reiterated’ the fundamental principle establishing the prohibition of discrimination on grounds of a child’s birth outside marriage ‘as a standard of protection of European public order’. Accordingly, very weighty reasons have to be advanced before a distinction on grounds of birth outside marriage can be regarded as compatible with the Convention. The Court repeated what it had said in Pla that it cannot remain passive where a national court’s interpretation of a private instrument “appears unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention”: paragraph 60.[33]The Court found that the difference in treatment arising from the domestic legislation was the result of the applicant being illegitimate. Its task was to establish whether there was objective and reasonable justification for the difference in treatment. Again the Government put forward justifications based on the expectations of the legitimate children and the need to ‘safeguard peaceful family relations’. That was the basis for the transitional provision included in the revising legislation retaining in effect prior inter vivos gifts, even where the estate had not yet been divided by the date the new law came into force. The Court accepted that the protection of acquired rights can serve the interests of legal certainty which is an underlying value of the Convention. The stability of completed inheritance arrangements was a legitimate aim capable of justifying the difference in treatment in that case. But going on to consider the issue of proportionality, the Court held that that interest ‘must be subordinate’ to the imperative of equal treatment between children born outside and children born within marriage. The Court held that the discrimination perpetuated by the transitional provisions was not proportionate and that there was a breach of Article 14 in conjunction with A1P1. It was not then necessary to consider the alternative claim based on Article 8.[3]The Human Rights Act 1998 and domestic case law[34]For the Claimants to succeed they must show not only that they are victims of an infringement of the Convention but also that the Human Rights Act 1998 (‘HRA’) confers on them a right to seek a remedy for that infringement in the domestic court. The HRA came into effect on 2 October 2000. Section 2(1) provides:
“2. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any — (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, . . .”
[35]Section 3(1) provides for how the court must interpret legislation:
“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.”
[36]‘The Convention rights’ are defined in section 1 of the HRA as the rights and fundamental freedoms set out in Articles 2 to 12 and 14 of the Convention and Articles 1 to 3 of the First Protocol.[37]Section 6(1) of the HRA provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and under section 6(3) the court is a public authority.[38]The issue of the retrospective application of the HRA was considered by the House of Lords in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40 (‘Wilson’). The speeches of the House of Lords in Wilson are key to the correct analysis of the present case and it is therefore necessary to examine them in some detail. Wilson arose from facts far removed from the present case. In 1999 Mrs Wilson borrowed £5,000 from a pawnbroker for a period of six months. The pawned property was her car. She did not repay the loan. The pawnbroker sought repayment, failing which the car would be sold. Mrs Wilson brought proceedings in the county court claiming that the agreement was unenforceable pursuant to section 127(3) of the Consumer Credit Act 1974 because it did not contain all the prescribed terms. The county court judge held that the agreement was properly executed but that its terms constituted an extortionate credit bargain. Mrs Wilson paid the sum then held to be due and redeemed the car, but she appealed to the Court of Appeal. The appeal was heard in November 2000 after the HRA had come into force. The Court of Appeal heard submissions on the question whether section 127(3) of the Consumer Credit Act infringes article 6(1) of the Convention and A1P1. The Court of Appeal ([2001] EWCA Civ 633) held that section 127(3) was incompatible with article 6 and with the pawnbroker’s rights under A1P1 and made a declaration of incompatibility under section 4 of the HRA to that effect. The Secretary of State appealed to the House of Lords. Her primary submission was that the court has no jurisdiction to make a declaration of incompatibility in relation to events occurring before the HRA came into force. Mrs Wilson’s agreement was made in January 1999 and lasted for a period of six months. The parties' rights had been determined before the HRA came into force in the county court’s decision in September 1999. Each of the five Law Lords hearing the appeal concluded in a separate speech that the appeal should be allowed.[39]Lord Nicholls of Birkenhead described the two principal means whereby the HRA ‘brings human rights home’ from Strasbourg. The first, in sections 3 to 5 and section 10, makes provision for the interpretation and amendment of legislation. The second, in sections 6 to 9, makes it unlawful for a public authority to act in a way incompatible with a Convention right: see paragraph 12 of his speech. Lord Nicholls considered the question of retrospectivity at paragraphs 17 onwards. He noted that section 3 of the HRA is retrospective in the sense that it expressly applies to legislation whenever enacted. Thus section 3 may have the effect of changing the interpretation and effect of legislation already in force. An interpretation appropriate before the HRA came into force may have to be reconsidered and revised in post-HRA proceedings. However, he went on:
“18. Considerable difficulties, however, might arise if the new interpretation of legislation, consequent on an application of section 3, were always to apply to pre-Act events. It would mean that parties' rights under existing legislation in respect of a transaction completed before the Act came into force could be changed overnight, to the benefit of one party and the prejudice of the other. This change, moreover, would operate capriciously, with the outcome depending on whether the parties' rights were determined by a court before or after 2 October 2000. The outcome in one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. Parliament cannot have intended section 3(1) should operate in this unfair and arbitrary fashion.”
[40]Lord Nicholls considered that the answer to this difficulty lay in the principle underlying the presumption against the retrospective operation of legislation and the similar but rather narrower presumption against interference with vested interests. He recognised that these presumptions are ‘vague and imprecise’. But he considered that the underlying rationale had been well identified by Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, 724 who said:
“the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”
[41]Lord Nicholls held therefore that the appropriate approach is to identify the intention of Parliament in respect of the relevant statutory provision in accordance with this statement of principle. Applying that approach, he decided the case on the narrow ground that in general the principle of interpretation set out in section 3(1) does not apply to causes of action accruing before the section came into force. The principle does not apply because to apply it in such cases, and thereby change the interpretation and effect of existing legislation, might well produce an unfair result for one party or the other. The HRA was not intended to have this effect. He said:
“21. I emphasise that this conclusion does not mean that section 3 never applies to pre-Act events. Whether section 3 applies to pre-Act events depends upon the application of the principle identified by Staughton LJ in the context of the particular issue before the court. To give one important instance: different considerations apply to post-Act criminal trials in respect of pre-Act happenings. The prosecution does not have an accrued or vested right in any relevant sense. 22. In the present case Parliament cannot have intended that application of section 3(1) should have the effect of altering parties' existing rights and obligations under the Consumer Credit Act. For the purpose of identifying the rights of Mrs Wilson and First County Trust under their January 1999 agreement the Consumer Credit Act is to be interpreted without reference to section 3(1).”
[42]Lord Hope of Craighead began his speech setting out the facts and emphasising that the transaction which had given rise to the appeal “was over and done with before the relevant provisions of the 1998 Act were brought into force, subject only to the question whether Mrs Wilson is entitled to repayment of the sum which she paid over to redeem her motor car”: paragraph 85. Referring to earlier authority, he stated that the HRA cannot be applied retroactively so as to deem the law to have been different from what it was when those acts were done. The question was whether the rights and obligations of parties to an agreement made before 2 October 2000 were, as a result of the coming into force of the relevant provisions of the HRA, different now from what they were when the agreement was entered into.[43]Lord Hope first rejected the analysis of the Court of Appeal which had focused on the compatibility of the order which it was about to make when disposing of the case as the act or conduct that had to be compliant with the Convention. Rather he held that the task set for the court by section 3(1) of the HRA was to construe the provisions of the statute which it is being asked to apply. Although section 3(2)(a) made clear that the interpretative obligation applied to all Acts of Parliament, whenever enacted, there was still a question whether the new interpretation of it required by the HRA should apply to agreements entered into before the HRA came into force. The House did therefore have to grapple with the issue of retrospectivity. Lord Hope said:
“98. Then there is the general presumption that legislation is not intended to operate retrospectively. That presumption is based on concepts of fairness and legal certainty. These concepts require that accrued rights and the legal effect of past acts should not be altered by subsequent legislation. But the mere fact that a statute depends for its application in the future on events that have happened in the past does not offend against the presumption. For a recent example of this point reference may be made to R v Field [2002] EWCA Crim 2913; [2003] 1 WLR 882 (CA). In that case it was held that the making of a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000 against a defendant from working with children in the future did not offend against the presumption where the offending behaviour had occurred before that Act came into force. It illustrates the point that there is an important distinction to be made between legislation which affects transactions that have created rights and obligations which the parties seek to enforce against each other and legislation which affects transactions that have resulted in the bringing of proceedings in the public interest by a public authority. The concepts of fairness and legal certainty carry much greater weight when it is being suggested that rights or obligations which were acquired or entered into before 2 October 2000 should be altered retrospectively.”
[44]Lord Hope considered that account must be taken of the purpose of the HRA, namely to give further effect to rights and freedoms guaranteed under the Convention which the United Kingdom has already signed and ratified:
“99. … Its purpose is to ensure that legislation is read and given effect in a way that is compatible with Convention rights, so far as it is possible to do so, whenever the legislation was enacted. To restrict the application of the interpretative obligation, without exception, to "events" that happened or "transactions" entered into on or after 2 October 2000 would be to introduce a restriction which is not stated expressly anywhere in the 1998 Act. A restriction in such absolute and all-embracing terms would seem to be contrary to the intention of the legislation and incapable of being read into it by necessary implication.”
[45]But, Lord Hope continued, it was important to recognise that both the parties to the consumer credit agreement in issue had acquired rights under it once it had been concluded in January 1999. Mrs Wilson’s right to the protection from enforcement afforded by the Consumer Credit Act would be removed by the application of the Convention, if the HRA had the effect contended for by the creditor. He held that that would violate the presumption against retrospectivity. Lord Hope concluded:
“101. … It seems to me that the presumption against the retrospective effect of legislation ought to be given its full weight in these circumstances. The case may be regarded as a typical example of the situation where legislation in question affects transactions that have created rights and obligations which the parties to it seek to enforce against each other. I recognise that there may be cases (and I have referred to R v Field [2003] 1 WLR 882 as an example) where a more relaxed approach will be appropriate. There is an obvious attraction in a solution to the application of the presumption to the obligation in section 3(1) which depends on clear, bright line rules which do not admit of any exceptions. But rules of that kind would be bound to lead to unfairness in some cases or to have consequences that could not have been intended for other reasons. So I would prefer to base my decision in this case on the particular facts and circumstances. I would hold that the presumption would be violated in this case if section 127(3) were to be construed in FCT's favour in a way that deprived Mrs Wilson of the protection which it was designed to give her when she entered into the agreement on 22 January 1999. 102. It follows that, as a determination of the question whether section 127(3) of the 1974 Act could be read and given effect in a way that was compatible with FCT's Convention rights would offend against the principle that legislation does not have effect retrospectively, it was not open to the Court of Appeal in these proceedings to make a declaration of incompatibility.”
[46]Lord Hobhouse of Woodborough also acknowledged that section 3 of the HRA changed the law and hence did change the parties’ rights and obligations towards each other. That is why the section raises the issue of retrospectivity. Lord Hobhouse did not deal further himself with the issue of retrospectivity but held that there was no breach of article 6 or A1P1. In conclusion he agreed with and adopted what was said by Lord Rodger of Earlsferry about the various usages of the word 'retrospective'.[47]Lord Scott of Foscote referred to the common law presumption that a statute is not intended to have retrospective effect: paragraph 153. But that presumption is, he said, ‘no more than a starting point’. As to whether the HRA did have retrospective effect or not, Lord Scott said:
“161. The arguments against allowing the Act to have a general retrospective effect seem to me very powerful. The legal consequences under the civil law of a transaction or of events ought to be established by reference to the law at the time they take place. When events apt to create rights or obligations take place citizens affected by the events need to be able to ascertain the extent of their rights or obligations. They cannot do so if subsequent legislation may add to or diminish those rights or obligations. Where transactions calculated to continue for some considerable period are entered into, intervening legislation may in some respect or other affect the rights and obligations that accrue under the transaction after the legislation has come into force.”
[48]As to that last point, Lord Scott contrasted two examples from a landlord and tenant context. Where a lease is granted for 99 years, there may well be legislative changes that affect the on-going rights and liabilities of the parties under that lease. But it would be much rarer for legislation to alter the rights and obligations of the parties resulting from events that had already taken place. Whatever may be the position where there is an on-going transaction and intervening legislation, the case before the House concerned a simple six-month loan and all the relevant events predated the coming into effect of the HRA: “There is nothing to rebut the presumption that Parliament did not intend the Act to operate retrospectively so as to alter accrued rights or to impose obligations where none previously existed” (paragraph 161). He concluded his speech saying that he believed his reasons were substantially the same as those expressed by Lord Nicholls, Lord Hope and Lord Rodger, with which he agreed.[49]Lord Rodger of Earlsferry described the HRA as ‘beautifully drafted’ and noted that, except for one or two points, the draftsman had left it to the courts to solve the question of how the HRA fitted into a world where events and transactions had been taking place and legal proceedings of various kinds were in progress: paragraph 184. He noted that the term ‘retrospective’ is used to describe a range of different effects, some more and some less extreme. He quoted various formulations of the presumption against retrospectivity. For example: i) statutes “are construed as operating only in cases or on facts which come into existence after the statutes were passed (Maxwell on The Interpretation of Statutes, 12th ed (1969), p 215); or ii) a statute changing the law should not be understood as “applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events” (per Sir Owen Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267); or iii) a statute should not be “treated as changing the substantive law in relation to events taking place prior to legislation coming into force” (per Lord Wolff LCJ in Wainwright v Home Office [2002] QB 1334, 1345F, at para 27).[50]Lord Rodger contrasted legislation of that kind with legislation that alters existing rights and duties but only prospectively with effect from the date of commencement. Like Lord Hobhouse, he illustrated the distinction with examples drawn from the landlord and tenant context where on-going rights under leases many decades old must be construed in accordance with subsequent legislation. Thus in West v Gwynne [1911] 2 Ch 1 the Court of Appeal held that a statutory provision adopted in 1892 banning the ability of landlords to demand payment for consent to an underletting (unless expressly provided for in the lease) applied to a lease that had been entered into before the statute came into effect.[51]Lord Rodger then sought to apply those general principles to the case before the House. He arrived at a number of conclusions which are relevant to the Henry Hand will. First he held that having regard to the purpose and structure of the HRA, and subject to any express provisions to the contrary, Parliament must have intended all the operative provisions of the HRA to take effect in the same way in respect of any given Convention right: “it would make no sense for some of these sections to apply retroactively or to apply generally to the situation on commencement and for others not to apply in these ways. They must all apply in the same way or else the 1998 Act would not work smoothly.” (paragraph 206). The relevant question was whether in incorporating Convention rights, it was Parliament’s intention to do so retrospectively or only as from commencement and, if retrospectively were the provisions intended to affect existing rights and pending proceedings? He held that the answer is to be found by considering whether the consequences of applying the operative provisions retroactively or so as to affect vested rights or pending proceedings would be so unfair that Parliament could not have intended them to be applied in these ways. So far as substantive rather than procedural rights are concerned (putting on one side articles 2, 3 and 4) he held that the presumption would be that Parliament did not intend that, when used to give effect to them, the operative provisions should interfere with vested rights or pending actions: paragraph 210.[52]Ultimately Lord Rodger based his decision on the narrow ground that because Mrs Wilson’s action was in progress as at 2 October 2000, the operative provisions of the HRA as regards A1P1 did not apply to her action.[53]There are two other domestic cases where judges have had to grapple with the same issue that arises in relation to the Henry Hand will. The case of Upton v National Westminster Bank plc and others [2004] EWHC 1962 (Ch) (‘Upton’) concerned the estate of Sir Thomas Upton who died in 1937. He made a will in 1930 and a codicil in 1935. The question arose whether an illegitimate grandson (Timothy Upton) who had been adopted by his father could inherit under his grandfather’s will which bequeathed property to ‘all or any of [Timothy’s father’s] children’. Timothy Upton’s father died shortly after the HRA came into force. HHJ Behrens handed down his judgment six days before the ECtHR gave judgment in Pla. He held that according to the domestic law in force at the time, illegitimate children were not included in such bequests. The Adoption Acts did not help Timothy Upton because the adoption order was made after the date of the will and codicil. The judge then turned to the submissions on the HRA and referred to Marckx. He distinguished the earlier cases on the basis that they were actions against the State for discriminatory legislation. The Judge noted that there is now no discrimination under English law on grounds of adoption or illegitimacy save in a case where the will was made before the relevant date from when that legislation removing the impediment applies. He went on:
“Thus Timothy Upton’s criticism is really a criticism that the amending legislation was not retrospective so as to affect the interpretation of existing instruments. There are sound reasons (such as certainty) for not making such legislation retrospective.”
[54]More recently the High Court has had occasion to revisit the issue. In Re Erskine 1948 Trust [2012] EWHC 732 (Ch) (‘Erskine’) concerned a settlement deed made in 1948. The relevant clause provided that the trustees should hold the trust property for the statutory next of kin of the beneficiary at the date of her death if she died unmarried. She died without children. A dispute over the inheritance arose between her adopted nephews and her cousins. Mark Herbert QC sitting as a deputy High Court Judge held that the definition of ‘statutory next of kin’ in the applicable legislation did not include adopted children. He then referred to Pla, Upton and Brauer. Mr Herbert said:
“It is plain from the cases mentioned above (Pla, Upton and Brauer) that the ECtHR has an emphatic aversion to discrimination against illegitimate and adopted children. But in the context of the present case this aversion is not easy to apply directly.”
[55]He referred to the issue of retrospectivity in applying the Convention to a statutory definition enacted many decades before the HRA came into force and to a private disposition of property rights made even before the Convention was signed. He recognised that if the settlor had expressly excluded adopted children from the trust then the court would be bound to enforce that and would not be infringing the Convention when doing so: “There will however be an infringement if the court creates a discrimination which was not effected by the settlor”: paragraph 25.[56]Turning to retrospectivity, Mr Herbert QC referred to Wilson. He described the decision of the House of Lords in that case as holding that it could not have been Parliament’s intention that the application of section 3(1) of the HRA should have the effect of altering the existing rights and obligations of the parties to an agreement made before section 3 came into force. But he said “At the same time, the presumption against the retrospective operation of legislation is not unqualified”. He cited the passage from Staughton LJ’s judgment in Tunnicliffe cited in Wilson (see paragraph 40, above). The judge concluded that in Wilson the question of unfairness was resolved in favour of Mrs Wilson. He then described the “similar process of balancing fairness” that was undertaken by the ECtHR in Brauer and concluded:
“29. At least one important general message can be derived from Wilson and Brauer cases (above) in the present context, namely that the Convention may operate retrospectively, but only if that is fair in the individual case. Brauer’s case also shows that evidence of the effects of the legislation and of the Convention on the applicant personally, and on other persons competing with the applicant, may be relevant and even ‘decisive’.”
[57]Mr Herbert stated that he was not being asked to adjudicate on the validity of national legislation or on any possible infringement of the Convention by the state. He posed the question “… is it possible that the Convention actually has effect to change the true construction of a valid private disposition?” The judge then set out a full analysis of the ECtHR’s decision in Pla. In particular he set out the key passage in paragraph 62 of the Pla judgment, quoted in paragraph 27, above. He described that passage as giving explicit guidance to national courts faced with the construction of discriminatory provisions in private documents. Mr Herbert recognised that this goes beyond what is provided for by section 3 of the HRA. But he went on:
“It seems to me clear that, if the present application had been before the court before 2 October [2000], the court would have been obliged to have regard only to national law when construing provisions in the settlement. The Convention could then have been invoked, but only in the ECtHR and only for the purpose of seeking compensation from the state. But now that the Convention has become part of English law, paragraph 62 [sc. of Pla] suggests that other considerations are relevant and might even prevail at the stage when the disposition is being construed.”
[58]Mr Herbert emphasised the difficulty in applying the Convention to a case involving an English law settlement or will trust: paragraph 48. He turned to consider whether despite these difficulties, he was required by section 2 of the Convention and the decision of the majority in Pla to override national law. He held that there were three points of guidance that he could draw from the decision. First, the court must avoid making a decision that is unreasonable, arbitrary or blatantly inconsistent with the prohibition on discrimination in Article 14. Secondly, the court must not ‘put words into the settlor’s mouth’. Thirdly, if the settlor had expressly distinguished between birth and adopted children then the court would have to give effect to that distinction. Applying this guidance, the judge held as follows: (emphasis added) “54. But I have come to the conclusion that in this particular settlement it is possible to contemplate and even to find a retrospective application of the principle of non-discrimination. I have mentioned that section 3 of the 1998 Act is not generally retrospective, but in Wilson (above) it was acknowledged that this is not an absolute rule. The section can be retrospective in cases (not including Wilson itself) where that is achieved without unfairness. Similarly I am prepared to accept in principle that the Convention becoming part of English law can have an effect on the construction and effect of an existing trust, if that can be achieved without unfairness. This is not fully retrospective. The new construction derived from the Convention would operate only from 2 October [2000]. But it would, from that date, alter beneficial interests under the settlement. For that reason the requirement to avoid unfairness will almost certainly prevent any new or different construction being adopted for many existing settlements and will trusts.”[59]Mr Herbert then enumerated the special features he identified in the case before him as relevant to the question where the balance of fairness lay in the case before him. These were:(i) the settlement itself contained no explicit exclusion of adopted children;(ii) the legislation that applied to exclude adopted children is discriminatory and contrary to the Convention;(iii) a trust for a person’s next of kin does not create either vested or contingent interests until the settlor or testator dies;(iv) although the expectancy created by the settlement could have been assigned for value, there was no evidence to suggest that it had been;(v) the contest in the dispute was between relatively distant cousins on the one hand and nephews who had been “full members of the family for some 60 years”; and(vi) the settlement had now come to an end and there was no continuing problem with identifying future beneficiaries. The judge concluded that because of these special features, without any one of which he would have reached a different answer, the trust should be construed in such a way as to eliminate the discrimination against adopted children.[60]The Claimants’ submissions at the hearing in November 2016 understandably focused on Erskine as the leading domestic case on the effect of the HRA on the interpretation of testamentary dispositions and, within Erskine,the reliance on the strongly worded statement of policy of the ECtHR in paragraph 62 of Pla. The Claimants submitted that the Convention can only operate retrospectively if that is fair in the individual case. They then compared the facts of the Henry Hand will trust with the six factors listed by the judge in Erskine submitting that three of those factors applied here as well. They also identified other factors that they submitted, pointed to ‘fairness’ favouring the entitlement of the Claimants to inherit.[61]The Defendants did not challenge the correctness of Erskine but rather sought to distinguish it on the basis that the judge there had said that if any one of the six special features had been absent, he would have decided the case differently. In the present case, the Defendants argued, one of those factors was missing so the decision in Erskine did not help the Claimants. The important difference between the facts in Erskine and those in the present case was that in Erskine there were no vested rights whereas under Henry Hand’s will, the Defendants had vested rights in the form of a remainder interest (rather than just an expectancy). More generally the Defendants pointed to differences between the facts in Erskine and the facts here to argue that the balance of fairness between these parties came down in favour of the Defendants. The Defendants also asserted rights under A1P1 and relied on Upton. The Defendants referred me to the speeches of Lord Rodger and Lord Scott in Wilson focusing on those passages that emphasised the importance of not interfering with vested rights.[4]Problems with Erskine[62]During the course of preparing this judgment after that hearing, I came to the provisional conclusion that the approach adopted by the judge in Erskine was inconsistent with the decision of the House of Lords in Wilson and that I should not follow it. That meant that most of the submissions that had been made to me in writing and at the hearing were based on the incorrect premise that the matter I had to decide was, broadly, whether on considering all the facts and circumstances surrounding the Hand family and the Henry Hand trust, the balance of fairness lay in favour of applying the HRA retrospectively in which case the claim would succeed or not. The reasons why I have concluded that the approach in Erskine is wrong are as follows.[63]First, it is not right in my judgment to state that the Convention has become part of English law to such a degree that paragraph 62 of Pla must be taken into account as an advisory opinion of the ECtHR whenever a domestic court interprets a private instrument. There may be member States of the Council of Europe in which the Convention has been absorbed into domestic law to such as degree but the United Kingdom is not one of them. The extent to which Convention rights are enforceable in the UK is set out in the HRA. As Lord Hobhouse said in Wilson:
“126. Although the main question of construction is to decide to what extent (if at all) the Act has retrospective effect, the first task is to examine the structure of the Act. The Act does not simply say, as do some comparable Acts (eg s.1(2) of the Carriage of Goods by Sea Act 1971), that the provisions of the European Convention "shall have the force of law". Its approach is more subtle. It has a limited definition of 'Convention rights': s.1. It requires courts in determining a question in connection with a Convention right to "take into account" judgments of the European Court of Human Rights and other cognate material: s.2. It thus, at the outset, draws a distinction between the international obligations of the United Kingdom under the Convention and what are to be the municipal law obligations of the three organs of the state, the Executive, the Legislature and the Judiciary.”
[64]Section 2 of the HRA does not contain a general injunction to the courts to take into account the case law of the ECtHR when deciding cases but requires them to take that case law into account when “determining a question which has arisen in connection with a Convention right” as defined in section 1. The application of the HRA is only relevant to the enforcement of ‘Convention rights’.[65]Secondly I do not agree that Wilson is authority for the proposition that the Convention can be applied retrospectively in any given case if a consideration of the individual circumstances of the case indicate that the result of that application would, on balance, be fair. Lord Rodger expressly made this point. He emphasised the need to identify carefully the question before the court when considering the application of A1P1: (my emphasis) “215. … It is crucially important to bear in mind that this is not a question about the application of section 127(3) of the 1974 Act, as potentially modified by section 3 of the 1998 Act, so as to affect vested rights or pending actions. Rather, it is a general question about the application of the operative provisions of the 1998 Act, when used to give effect to the article 1 right, so as to affect vested rights or pending proceedings. That question admits of only a single answer in regard to vested rights and pending proceedings respectively. And that answer cannot be found by examining the circumstances of particular cases and then applying a more or less flexible test in the light of those circumstances. … So in this case the single answer to the broadly conceived question is to be found by considering how Parliament intended the operative provisions of the 1998 Act to apply in relation to the generality of vested rights or pending proceedings - not in relation to vested rights or pending proceedings under the 1974 Act, far less in relation to the individual plight of Mrs Wilson and First County. To descend to those levels of particularity would not only result in a myriad of single decisions but would be to attribute to Parliament the implausible intention that the meticulously drawn 1998 Act, embodying a landmark reform, was to apply in a piecemeal and haphazard fashion.”[66]It is true that Staughton LJ in Tunnicliffe referred to the presumption against retrospectivity depending on fairness and that Lord Nicholls (at paragraph 21 of his speech in Wilson) said that whether section 3 applies to pre-Act events depends upon the application of the principle identified by Staughton LJ in the context of the particular issue before the court. But I do not read any of their Lordships’ speeches in Wilson as suggesting that the question whether the HRA operates retrospectively could depend on the kinds of case-specific factors that were identified in Erskine and to which the parties in this present case largely devoted their submissions before me. The exercise for the court is not a general balancing of the fairness and unfairness of the claims of the particular parties. Rather it is to identify whether a Convention right of the Claimants has been infringed and if so whether the HRA provides a means of providing redress for that infringement in this court.[67]Thirdly, I do not agree that what the ECtHR said in Brauer can be relevant to the question whether the HRA operates retrospectively or not. It is important to distinguish in this case between two questions. The first is whether there has been an infringement of the Claimants’ rights under the Convention. That question may involve a consideration of whether the Convention applies retrospectively so as to confer rights on the Claimants in relation to a will drawn up in 1946 where the testator has died before the Convention came into force. Those are questions of the interpretation and application of Convention rights and hence are questions on which the ECtHR jurisprudence is relevant and important. The second question is whether any infringement of the Convention of which the Claimants are victims is actionable by them in the domestic court. That is a question of the interpretation of the HRA. The ECtHR has a very limited role, if any role, in relation to that question. What the Court says in Brauer may be important in deciding whether the Convention operates retrospectively but it cannot affect whether the domestic law operates retrospectively. I have in mind here what Lord Nicholls said in In re McKerr (AP) (Respondent) (Northern Ireland) [2004] UKHL 12: (emphasis added) “26. Having had the advantage of much fuller arguments I respectfully consider that some of these courts … fell into error by failing to keep clearly in mind the distinction between(1) rights arising under the Convention and(2) rights created by the Human Rights Act by reference to the Convention. These two sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the Human Rights Act 1998 and they continue to exist. They are not as such part of this country's law because the Convention does not form part of this country's law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the Human Rights Act. The latter came into existence for the first time on 2 October 2000. They are part of this country's law. The extent of these rights, created as they were by the Human Rights Act, depends upon the proper interpretation of that Act. It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the Human Rights Act came into force will be mirrored by a corresponding right created by the Human Rights Act. Whether it finds reflection in this way in the Human Rights Act depends upon the proper interpretation of the Human Rights Act.”[68]Having come to that provisional conclusion, I wrote to counsel for both parties on 5 December 2016 explaining my concerns and offering them the opportunity to make further submissions. A short further hearing was held on 3 March 2017 and I am very grateful to them for the submissions they made. Mr Miller for the Claimants reserved his position on whether the approach adopted in Erskine was correct but both counsel’s submissions were helpfully focused on the issues I had identified in my letter as relevant.[5]Is there an infringement of the Claimants’ Convention rights? (a). What is the act alleged to breach the Convention rights?[69]As their Lordships in Wilson emphasised, Convention rights have only limited ‘horizontal’ effect. People’s rights are infringed not by other individuals but by the actions of an organ of the state, including the legislature. Adopted children have no more right to inherit the estate of their parents than any other child; parents remain free to disinherit some or all of their children for good reason or bad (though the law may step in to alleviate the effect of this in some circumstances).[70]The first point to consider is what is the conduct that is really challenged here as being an infringement of the Claimants’ Convention rights? It cannot be the wording of Henry Hand’s will. That was not on its face discriminatory and is in any event a private act, not the act of the State. The ECtHR’s judgment in Pla is not as helpful as it might have been in identifying in what precisely the infringement of the applicant’s rights lay. Certain passages in Pla suggest that it was the decision of the Andorran appeal court itself that was the culprit. If that was the approach of the ECtHR then I regard the decision in Wilson as authority binding on me that it is not the decision of the court on construing the legislation or instrument that is the conduct of the state which can be challenged under the HRA but the domestic law which the court must apply in deciding the case. As Lord Hobhouse said at paragraph 131 of Wilson:
“For a court, its duty in the determination of any dispute is to determine it in accordance with the municipal law applicable to the issue. This may include the duty to consider whether a particular statute or statutory provision has retrospective effect or not. If it does have retrospective effect, then that effect must be recognised but, if it does not, it must not be treated as determinative of the legality or legal result of earlier events or conduct, earlier, that is, than the date upon which the relevant change in the law came into effect”
[71]Lord Nicholls also held that there can be no question of the court acting ‘unlawfully’ when giving effect to mandatory statutory provisions. This is because section 6(2)(a) of the HRA excludes from the scope of potentially non-compliant acts of public authorities any decision by an authority giving effect to incompatible primary legislation: see paragraph 29 of Wilson. Lord Scott also firmly rejected the idea that it is the order of the court in the particular case that is the conduct which may be incompatible with Convention rights: see paragraphs 156 and 157.[72]On this point I therefore agree with the conclusion of HHJ Behrens in Upton. The conduct of which the Claimants are really complaining here is the failure of the 1949 Act and the 1976 Act to overturn section 5(2) of the 1926 Act in so far as it still applies to Henry Hand’s will. To express it more precisely, it is paragraph 6 of Schedule 2 to the 1976 Act which is the allegedly discriminatory provision. In the absence of that provision, the reference to ‘child or children’ in Henry Hand’s will would include the Claimants pursuant to section 39(6)(a) of the 1976 Act.[73]Mr Lewison appearing for the Defendants contested this analysis. He referred me to the judgment in Horsham Properties Group Ltd v Clark and another (Secretary of State intervening) [2008] EWHC 2327 (Ch) (‘Horsham’). In Horsham Briggs J (as he then was) considered whether a mortgagee’s power under section 101 of the Law of Property Act 1925 to sell the property without first obtaining a court order for possession or sale violated the mortgagor’s right to peaceful enjoyment of her possessions guaranteed by A1P1.

The judge held that there was no infringement of the mortgagor’s rights:

“35. My primary reason for that conclusion is that section 101 serves to implement rather than override the private bargain between mortgagor and mortgagee. As I have described, its history, going back to 1860, is that it supplies a convenient power of sale out of court to mortgagees in substitution for the parties having (as they routinely did before 1860) to spell out such a power in every legal mortgage. It is in substance a form of conveyancing shorthand designed to implement the ordinary expectations of mortgagors and mortgagees while reducing the costs and delays of conveyancing. … 36. Furthermore, all the statutory powers in section 101 are expressed to be subject to contrary intention. Section 101(4) provides that: “This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed and to the provisions therein contained.”
That sub-section on its own demonstrates that section 101 serves rather than overrides the parties’ bargain.” “This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed and to the provisions therein contained.”[74]Mr Lewison submitted that Horsham is authority for the proposition that where a statutory provision provides a default interpretation for words in a private instrument but the parties are free to make different provision if they so choose, then the statutory provision should be treated as part and parcel of the private instrument because it serves to implement rather than override the private bargain. It is not therefore a provision that is susceptible to being read down by section 3 of the HRA.[75]I do not agree that Briggs J’s decision is relevant here. What he was considering in Horsham was whether the asset which the claimant was complaining she had lost had been lost by virtue of some form of state intervention rather than purely as a result of the terms of her private bargain with the mortgagee. The claimant accepted that she had to show that her loss arose from State intervention in order to succeed with her claim based on A1P1: see paragraph 24 of the judgment. Briggs J held that the interpretative provision in section 101, being optional rather than mandatory, was not an act of State intervention depriving the claimant of her possessions of the kind covered by A1P1. The case is not authority for a much broader proposition that where a statutory interpretative provision is capable of being opted out of by private agreement, it is not to be regarded as a legislative act of the State capable of giving rise to an infringement of the Convention but rather must be treated as subsumed into the private instrument which it is interpreting. (b). Does the domestic legislation infringe Article 14 in conjunction with Article 8?[76]The next question is whether the domestic legislation as it applies to Henry Hand’s will infringes the Convention. In my judgment it is clear from the Strasbourg case law that I have cited above that it does. The ECtHR has consistently held that Article 14 in conjunction with Article 8 precludes legislation which confers more limited rights on adopted children to their adoptive parents’ estate, than are conferred on natural children. The ECtHR has also consistently rejected arguments put forward by respondent governments that the discriminatory law should remain applicable to instruments that pre-date the change in social attitudes which now requires equal treatment for adopted children. The ECtHR addressed the problem of retrospectivity of the Convention in this regard in Marckx. It held that arguments based on legal certainty or the need to protect the expectations of the deceased and their families must be subordinate to the imperative of equal treatment. Discrimination cannot be regarded as a proportionate response to such concerns: see Brauer atparagraph 43 and the treatment of transitional provisions retaining the effect of discriminatory legislation for earlier instruments in Fabris at paragraph 68.[77]I therefore hold that the Claimants would succeed in a claim before the ECtHR that the United Kingdom Government has infringed their rights under Article 14 in combination with Article 8 by failing to legislate to ensure that the interpretative provision in section 5(2) of the 1926 Act had no continuing effect where a will falls to be construed after the Convention came into force. (c). Should I decline to follow the ECtHR’s jurisprudence?[78]At the second hearing, Mr Lewison relied on a line of authority which establishes that there are rare occasions in which an English court may decline to follow the jurisprudence of the ECtHR. In R v Horncastle and another [2009] UKSC 14, Lord Phillips of Worth Matravers PSC said that the requirement in section 2 of the HRA to ‘take into account’ the Strasbourg jurisprudence will normally result in the domestic court applying the principles that are clearly established by the ECtHR. But he went on:
“11 … There will, however, be rare occasions where the domestic court has concerns as to whether the decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court.”
[79]The Supreme Court held that that case, which concerned the admissibility of hearsay evidence in criminal trials, was such an occasion.[80]Mr Lewison submitted that the case law of the ECtHR was concerned not with an interpretative provision like section 5(2) of the 1926 Act but with domestic provisions which mandated what entitlement the testator’s children should have, regardless of the wishes of the testator. This approach does not chime with English law’s greater respect for freedom of testation. He also argued that the ECtHR case law would not necessarily apply in the same way to a provision like section 5(2) which does not apply if the testator makes express provision to the contrary.[81]In my judgment this is not one of the rare occasions on which the court should decline to follow the Strasbourg case law. Pla shows that a breach of the Convention can arise from precisely the kind of domestic interpretative rules applicable to an ambiguous clause in a private instrument. In the passages cited in Pla from the judgments of the Tribunal des Batlles of Andorra and the appellate High Court of Andorra, it appears that Andorran law recognised the primacy of the testator’s wishes. The issue before those courts and before the ECtHR was precisely the issue that arises here; in paragraph 58 of the judgment in Pla the ECtHR acknowledges that the testatrix could have expressly excluded adopted grandsons but did not do so. The ECtHR did not treat the interpretative effect of the underlying Andorran law as having been incorporated into the wording of the will so as to take that law beyond the bounds of the Convention.[82]I do not accept that English law’s respect for freedom of testation is necessarily greater than the respect shown in other jurisdictions. English law also enables the testator’s wishes to be set aside in certain circumstances, such as where the beneficiaries all agree to a different disposition (see section 142 of the Inheritance Tax Act 1984) or where the testator has failed to make reasonable financial provision for his next of kin in certain circumstances: see the Inheritance (Provision for Family and Dependents) Act 1975.[83]I also accept Mr Miller’s submission that the importance that the ECtHR case law places on treating adopted children as fully the equals of natural children is consistent with the current position under English law – there is no need here to enter into a valuable dialogue with the Strasbourg Court on that topic.[6]Is the breach of the Claimants’ Convention rights enforceable under the HRA?[84]That brings me to the crux of this case which is whether ‘reading down’ the domestic legislation so as to uphold the Claimants’ rights not to be discriminated against here would be giving retrospective effect to the HRA in a way that is inconsistent with the decision of the House of Lords in Wilson.[85]Wilson is authority for the proposition that the HRA does not generally have retrospective effect. Various caveats were expressed by their Lordships, such as whether the rights under Articles 2 and 3 of the Convention might be in a different category, or whether Article 6 rights might arise in ‘post-Act criminal trials in respect of pre-Act happenings”: see Lord Nicholls at paragraph 21. Although some of their Lordships decided the case before them on a narrow ground, there is no doubt that the general purport of the speeches is that the HRA was not intended by Parliament to operate retrospectively. However, that is not the end of the matter. One must examine carefully whether reading down the 1976 Act really would amount to the retrospective application of the HRA.[86]Mr Miller argues that this would not be true retrospectivity. He submits that Henry Hand’s will should be treated like the long lease in Lord Rodger’s example citing West v Gwynne (see paragraph 50, above). The lease at its inception confers certain rights on the parties if certain things happen. If that thing happens before the revising legislation comes into effect, the die is cast and the changes brought about by the new legislation cannot apply retrospectively to change the result. But if the event happens after the revising legislation comes into effect then in order to determine the scope of the parties’ rights under the lease, one must look not just at the wording of the lease but also at the wording of the subsequent legislation. As Lord Rodger said, there is no general presumption that legislation does not alter the existing legal situation or existing legal rights prospectively in respect of events that happen after the HRA comes into force.[87]Applying those principles to the present case, if Joan George who died in 1981 had had adopted children in addition to the Defendants, those adopted children could well have challenged their exclusion from the will by pursuing a claim in Strasbourg relying on Marckx. But they would have had no right to pursue that claim in the English courts. Once the HRA came into force they would, on the authority of Wilson, be in no better position. The implementation of the terms of her will in response to her death would be “a transaction completed before the Act came into force” to use Lord Nicholls’ phrase; it would be “over and done with before the relevant provisions of the 1998 Act were brought into force” to use Lord Hope’s.[88]Does it make a difference here that Kenneth died in 2008, after the HRA came into effect? That depends on whether Kenneth’s death falls to be treated as a “post-Act event”, to use the phrase used in Wilson, different in effect from the death of Joan which was clearly a ‘pre-Act event’. In my judgment, this does make an important difference. The interpretation of Henry Hand’s will was not ‘over and done with’ before the HRA came into effect in the same way that the interpretation of Mrs Wilson’s consumer credit agreement was a completed transaction before 2 October 2000. The question of whether Kenneth has any “children” within the meaning of the will only falls to be determined on his death, after the HRA has come into force. This means that to apply the HRA in combination with the wording of the will is not, in my judgment, truly a retrospective application of the HRA. Following the coming into force of the HRA, if the question of whether a beneficiary in the will has children or not arises for consideration, that question must be addressed having regard to the HRA as well as having regard to the wording of the will. Under domestic legislation, the answer is that the adopted children are not included. But that must now be read in a way which is compliant with the rights that adopted children have not to be discriminated against by domestic legislation because of their adopted status.[89]Mr Lewison argues that this cannot be right because on the death of Henry Hand in 1947 – or at the latest once the trusts under that will had been fully constituted - the grandchildren of Henry Hand acquired vested interests, that is a remainder interest subject to a life interest. Such an interest is, according to English law, a fixed and vested property right capable of being bought and sold, encumbered and inherited. Mr Lewison relies on the speech of Lord Rodger in Wilson where he considered the situation where a change in existing rights even on the happening of post-Act events may be so unfair to certain individuals in their predicament that it is assumed that Parliament did not intend the new legislation to affect them in that respect. Lord Rodger said that the term ‘vested rights’ has been used to describe this situation which requires special care. He then described the attempts of the courts to define what are ‘vested rights’ and what are not, recognising that the reasoning in the cases is circular in that “the courts have tended to attach the somewhat woolly label ‘vested’ to those rights which they conclude should be protected from the effect of the new legislation”. Referring to what Lord Mustill had said in an earlier case, Lord Rodger said: “201. … an appropriate test might be formulated along these lines: Would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be "so unfair" that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions”.[90]The Defendants argue the point in two ways. They say that the proper analogy with the long lease posited by Lord Rodger in Wilson is that the vesting of such an interest is the pre-Act event which is treated as having happened in the past and the date of the death of Kenneth is irrelevant. Alternatively, if Kenneth’s death can properly be described as a post-Act event, the nature of the rights vested in the Defendants long before the HRA came into force means that any interference with them by the application of the HRA should be regarded as the unacceptable and unfair application of that revising legislation. Mr Lewison submits that it may be that where a will confers a contingent right or expectancy on a class of ‘children’, then if the event occurs that is contemplated by the will after the HRA comes into force, the proper interpretation of the reference to ‘children’ should take into account their Convention rights. That may have been the position in Erskine but it was not the position here.[91]There are two answers to this point. The first is that, as Mr Miller points out, the vested interests of Henry Hand’s grandchildren in 1947 were always subject to partial divestment. In the years after Henry Hand died there could have been many events that changed the value of the Defendants’ rights without depriving them of their nature as vested interests. Gordon Hand could have had children in which case the Defendants would not have inherited any part of his share on their death of their mother. Joan could have had further children in which case the Defendants’ share would have been smaller. Kenneth Hand could have had natural children in which case there would be no question of the Defendants inheriting his share of Henry Hand’s estate. The fact that the quantification of their vested interest could fluctuate according to later additions does not mean that their vested interest has been invaded or taken away by the occurrence of those events. Similarly, here the vested interest of Henry Hand’s natural grandchildren has not been attacked or abrogated by the recognition of the adopted children; that recognition simply serves to diminish the value of that vested interest in the same way as if more natural children had been born.[92]The second answer is that Lord Rodger in Wilson is not using the term ‘vested interest’ in the same way as it is used as a term of art in English inheritance law. On the contrary, he makes clear that the word is being used in a different more malleable way when it is used to describe interests, whatever their source, which ought not to be affected by the application of revising legislation. Thus in paragraph 196 of Wilson, Lord Rodger refers to the judgment of Lord Herschell LC in Abbott v Minister for Lands [1895] AC 425. This indicates that in order for a right to be ‘vested’ in the sense that is meant when considering the presumption against vested rights being altered by subsequent legislation, “the particular beneficiary of the right must have done something to avail himself of it before the law is changed”. It is not suggested by the Defendants in the present case that they have done anything to avail themselves of the rights that they had under Henry Hand’s will.[93]In my judgment, even though the Defendants’ interests in Henry Hand’s estate may have been vested interests in the sense that that phrase is used as a term of art of inheritance law, their interests were not vested in the sense that Lord Rodger was using it, namely that it would be unfair to apply revising legislation in a way which reduces the value of that interest because of the happening of a post-Act event.[94]I therefore hold that it is not a retrospective application of the HRA to apply it to determine whether on the proper construction of the Henry Hand will, Kenneth is to be treated as having died in 2008 with two children or without any children. The only point in time at which that question falls to be asked is when Kenneth dies. The change in the Claimants’ rights brought about by the coming into effect of the Claimants’ right to equal treatment in October 2000 is not so unfair as to lead to a presumption that Parliament did not intend them to be affected in the manner for which the Claimants contend. As Lord Rodger says in paragraph 192 of Wilson:
“Since provisions which affect existing rights prospectively are not retroactive, the presumption against retroactivity does not apply. Nor is there any general presumption that legislation does not alter the existing legal situation or existing rights: the very purpose of Acts of Parliament is to alter the existing legal situation and this will often involve altering existing rights for the future. … As the sparks fly upward, individuals and businesses run the risk that Parliament may change the law governing their affairs.”
[95]Mr Lewison argued that to construe Henry Hand’s will now as including adopted children amounts to an infringement of the Defendants’ A1P1 rights. The application of A1P1 to inheritance rights was considered by the ECtHR in Fabris although in that case it was the claimant child who relied on A1P1 in conjunction with Article 14 to claim an entitlement to the reserved portion of his mother’s estate rather than A1P1 being relied on by the half-siblings to defeat his claim. However, the Court’s analysis of whether inheritance rights fall within the ambit of A1P1 is instructive. The Court said (citations omitted) “49. The Court reiterates that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (…). 50. Article 1 of Protocol No. 1 does not guarantee the right to acquire possessions in particular on intestacy or through voluntary dispositions (…). However, “possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right” (…) A legitimate expectation must have a “sufficient basis in national law” (…). Likewise, the concept of “possessions” may extend to a particular benefit of which the persons concerned have been deprived on the basis of a discriminatory condition of entitlement (…). However, the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition …”[96]The ECtHR held that the test to be applied in that case was “whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right, enforceable under domestic law, in respect of the asset in question”. The Court held that the test was satisfied in that case so that the claimant’s pecuniary interest fell within the scope of A1P1 and the right to peaceful enjoyment of possessions that it safeguards: see paragraph 55. The Court rejected the Government’s argument that the inter vivos gift that the claimant was seeking to abate was made in 1970 and had as at that date had the effect of immediately and irrevocably distributing the mother’s assets. It held that according to the case law of the French courts, whilst the inter vivos gifts have the immediate effect of transferring ownership, this did not become a division for inheritance purposes until the death of the donor. The key event was therefore the mother’s death, not the making of the inter vivos gift and by that date the claimant’s ‘filiation’ had been determined.[97]What Fabris established is not only that the illegitimate claimant had a possessory right that fell within A1P1 but that any counter-entitlement of the legitimate children arising from the inter vivos gift made to them by their mother was overridden by the claimant. The ECtHR dealt with this point as follows:
“67. The Court observes that in the present case, subject to the statutory right to bring an action for abatement, the applicant’s half-brother and half-sister obtained property rights on the basis of the inter vivos division of 1970 by virtue of which Mrs M.’s estate passed to them on her death in July 1994. … 68. However, the Court reiterates that “protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage” (see Brauer, cited above, § 43). In that connection it considers that the applicant’s half-brother and half-sister knew – or should have known – that their rights were liable to be challenged. At the time of their mother’s death in 1994 there was a statutory five-year time-period for bringing an action for abatement of an inter vivos division. The legitimate heirs should therefore have known that their half-brother had until 1999 to claim his share in the estate and that such an action was capable of calling into question not the division as such, but the extent of the rights of each of the descendants. Moreover, the action for abatement that the applicant did finally bring in 1998 was pending before the national courts at the time of delivery of the judgment in Mazurek, which declared that inequality of inheritance rights on grounds of birth was incompatible with the Convention, and at the time of publication of the 2001 Law, which executed that judgment by incorporating the principles established therein into French law. Lastly, the applicant was not a descendant whose existence was unknown to them, as he had been recognised as their mother’s “illegitimate” son in a judgment delivered in 1983 (…). That was sufficient to arouse justified doubts as to whether the estate had actually passed on Mrs M.’s death in 1994 (see the conclusions of the advocate-general, paragraph 22 above). 69. … The fact that that action was still pending in 2001 could not but relativise the expectation of Mrs M.’s other heirs that they would succeed in establishing undisputed rights to her estate. 70. Accordingly, in the light of the foregoing, the Court considers that the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate. 71. Moreover, it would appear that, even in the eyes of the national authorities, the expectations of heirs who are the beneficiaries of an inter vivos division are not to be protected in all circumstances. Indeed, if the same action for an abatement of the inter vivos division had been brought at the same time by another legitimate child, born at a later date or wilfully excluded from the division, it would not have been declared inadmissible.”
[98]It seems to me that the claims of the legitimate children in Fabris to have their rights under the inter vivos gift of their mother respected were far stronger than the claims of the Defendants in this case and yet they were still overridden by Mr Fabris’ right to inherit on a non-discriminatory basis. Even if, as to which I make no decision, the Defendants’ rights in the present case fall within the ambit of A1P1, they cannot prevail against the Claimants’ rights under Article 14 in conjunction with Article 8.[7]Reading down the infringing legislation[99]I turn finally to the question whether it is possible to read down the domestic legislation which infringes the Claimants’ rights. As I explained earlier, the statutory provision which retains the discriminatory interpretative provision in section 5(2) of the 1926 Act is paragraph 6 of Schedule 2 to the 1976 Act. That disapplies section 39 of the 1976 Act to existing instruments in so far as they contain a disposition of property.[100]The extent of the court’s powers to read down legislation pursuant to section 3(1) of the HRA has been considered in a number of authorities. In In re S (Care[101]An application of the section 3 which is closer to the present case is Ghaidan v Godin-Mendoza [2004] UKHL 30. The question there was whether the surviving homosexual partner of the deceased protected tenant of a flat succeeded to his tenancy as a statutory tenant by succession as his surviving ‘spouse’ within the meaning of paragraph 2 of Schedule 1 to the Rent Act 1977. That provision extended the word ‘spouse’ to persons living with the deceased tenant ‘as his or her wife or husband’. The House of Lords held that, unless the legislation could be read as extending to the partner’s case, his Convention rights were violated. There thus arose the question whether section 3 enabled a Convention-compliant interpretation to be applied to Schedule 1. Upholding the Court of Appeal, the House held that it could.[102]Lord Nicholls of Birkenhead in Ghaidan reiterated that the operation of section 3 does not depend on there being an ambiguity in the legislation in question: even if there is no doubt as to its meaning according to the ordinary principles of interpretation, section 3 may nonetheless require it to be given a different meaning. He gave this guidance:
“32. From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation. 33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry “go with the grain of the legislation”
. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.’”[103]Lord Rodger’s concurring speech in Ghaidan refers to a distinction between judicial interpretation and judicial vandalism. The former can, in this context, include supplying additional words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights: “If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights” (see paragraph 121 of Ghaidan).[104]If the 1926 Act remained in effect today in its original form, there would be considerable difficulties in using section 3(1) of the HRA simply to reverse the interpretative force of the last lines of section 5(2) of the 1926 Act. That is because the scheme of that legislation was that adopted children remained the children of their natural parents as a matter of law and did not become the children of their adoptive parents. To revise one aspect of that scheme could well be described as going against the grain of the legislation or being inconsistent with a fundamental feature of the 1926 Act. But the 1926 Act is not still in force and the scheme of the 1976 Act is entirely the opposite. It affirms that adopted children are in all respects to be treated as the children of, and only of, their adoptive parents. It is not going against the grain of that legislation to remove perhaps the last legacy of the old 1926 Act approach. In my judgment, it is well within the court’s power to read down paragraph 6 of Schedule 2 to make it compliant with the Claimants’ Convention rights.[105]Mr Miller proposed some wording to show how a Convention-compliant version of paragraph 6 would read. He draws on the reference in Lord Rodger’s speech in Wilson to the fact that vested rights which are not to be changed even by the prospective application of revising law are only those which have been acted upon: see paragraph 196 of Lord Rodger’s speech cited in paragraph 92, above. His suggestion is that once read down, paragraph 6 of Schedule 2 would look like this:
“Section 39— (a) does not apply to an existing instrument or enactment in so far as (i) it contains a disposition of property, and (ii) the beneficiary of the disposition has done something to avail himself or herself of the property right in question before the coming into force of the Human Rights Act 1998”
[106]I agree that for present purposes, that wording is effective to bring the 1976 Act into compliance with the Claimants’ Convention rights. It does not go against the grain of the 1976 Act or have practical repercussions that the court cannot evaluate. I therefore read down paragraph 6 so that section 39(1), (5) and (6) of the 1976 Act now mean that the reference in Henry Hand’s will to the child or children of his children includes any adopted grandchild and so includes the Claimants.

Conclusion

[107]I therefore find that the Claimants’ action succeeds and they, and not the Defendants, are entitled to inherit the part of their father’s estate that derives from Henry Hand’s will. The court must respect their Convention right under Article 14 in conjunction with Article 8 of the Convention not to be discriminated against by the application of a legislative provision which causes the ambiguous reference in Henry Hand’s will to his grandchildren to be construed as excluding them as his adopted grandchildren.[108]The application of the HRA to achieve that result does not, in my judgment, amount to the retrospective application of the HRA in a way which is inconsistent with the decision of the House of Lords in Wilson. That is because: i) the issue of the proper interpretation of Henry Hand’s will only arises for consideration on the death of Kenneth Hand in 2008, after the HRA came into effect; and ii) since the Defendants have done nothing to avail themselves of the remainder interest they acquired under the will in 1946, their rights are not ‘vested’ in the sense used in Wilson to describe the kinds of rights that should not be interfered with even by the prospective operation of legislation to change the rights and obligations of parties under private instruments arising from post-Act events.[109]It is possible to read down paragraph 6 of Schedule 2 to the 1976 Act pursuant to section 3(1) of the HRA so that it complies with the Claimants’ Convention rights by construing it as if it reads: “Section 39— (a) does not apply to an existing instrument or enactment in so far as (i) it contains a disposition of property, and (ii) the beneficiary of the disposition has done something to avail himself or herself of the property right in question before the coming into force of the Human Rights Act 1998”.

Order

Implementation of Care Plan) [2002] UKHL 10, Lord Nicholls described section 3 as ‘a powerful tool whose use is obligatory’. He emphasised that it is not a canon of construction and its use is not dependent on the existence of ambiguity in the statutory wording. The use of the tool is not unlimited and the courts ‘must be ever mindful of this outer limit’: see paragraph 38 of his judgment. It is that limit that preserves Parliamentary sovereignty and maintains the constitutional boundary between the legislature and the courts. Lord Nicholls described the limit in the following terms: “40 … a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation”

Cited in 4 later judgments