“The following areas are out of scope for review: Marriage and Civil Partnership as a condition of entitlement. Currently, the law and tax and benefit systems only recognise the inheritance rights and needs of bereaved people if they have a recognised marriage or civil partnership. This is despite societal change resulting in a decline in marital status. We have no plans to extend eligibility for bereavement benefits to those who are not married or in a civil partnership.”
“220. I next deal with the issue of comparability or analogous situation. As Baroness Hale said in McLaughlin, at [26], this issue has to be addressed “in the context of the measure in question and its purpose”
“As regards issue (ii), my reasons are, I believe, substantially the same as Moylan LJ’s. In bare outline, if, as I believe, the intention of the legislation is to distinguish between cases where the parties were and were not validly married as a matter of domestic law, that is a legitimate distinction in the context of entitlement to a benefit of this character. Lawful marriage (or civil partnership) is a well-recognised status of fundamental importance in our society and one which it is entirely appropriate should be defined by formal rules. It is a reasonable legislative choice to limit entitlement to bereavement payments only to the surviving party to a marriage or partnership which is formally valid, even if there may be occasional hard cases where the validity of a marriage is vitiated by a defect of which the surviving party was unaware. That argument can be expressed equally as going to “analogous position” or to justification: those questions typically overlap in the article 14 context. I agree with Moylan LJ that McLaughlin is distinguishable for the reasons that he gives.”
“Bereavement Payment – Comparability [66] Through marriage (or civil partnership) a couple regulates their relationship with each other and with the state through their public contract. The couple puts the state ‘on notice’ of their relationship. A cohabiting couple make no such public contract. This in itself is usually sufficient to make the two relationships sufficiently different in a material particular to lawfully treat the relationships differently in certain circumstances. By the act of marriage the couple ‘opt in’ to this different treatment – the treatment arises not by virtue of the quality of the relationship or the length of the relationship, but because the couple have made the contract and made the state aware of their changed circumstances. [67] For this reason I find that the applicant’s claim for bereavement payments must fail. Widowed Parent’s Allowance – Comparability [68] By contrast, the facet of the relationship that is relevant to the claimed Widowed Parent’s Allowance is the co-raising of children. Therefore in relation to comparability of spouses/civil partners and cohabitees under this head, I consider that the relationships are analogous.”
“[43] What this brief overview demonstrates is that there are functional and legal differences between parties living in a cohabitational relationship and married couples which make the relationship different in fact and in the eyes of the law. The overview also indicates the difficulties and sensitivities that exist in relation to formulation of law reform to deal with cohabitational relationships. In certain circumstances the relationship may be analogous to a marriage. In others it is not. Drawing the line when such relationships should be functionally equated to a marriage calls for a policy decision. In the absence of a mechanism for drawing that line the domestic law proceeds on the basis that the relationships are distinct and separate. The fundamental and central difference between the two relationships is that in the case of marriage the parties have committed themselves to a binding although not legally indissoluble commitment whereby the parties commit themselves to an exclusive relationship which has determined legal consequences in the event of dissolution on death or during life. … [52] The choice as to what evidences the level of commitment and constancy in a cohabitational relationship to justify payment of a survivor's pension is a question of social policy and thus would normally fall within the category of discrimination which could only be considered unlawful if it is manifestly without reasonable foundation. However, once that choice has been made and the decision has been made to consider cohabitational partners as satisfying the factual indicia of commitment and constancy chosen, the imposition of discriminatory conditions on a category which is considered by the policy maker to be factually analogous to that of spouses and civil partners does not appear to me to involve the exercise of a judgment on a question of general or broad social policy.”
“In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships: cf, for example, Burden’s case, in which the ECtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would violate their rights under article 14 read with A1P1. Rather, it is the intimacy of a stable and long- term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees. It is apparent from the very fact that bereavement damages are limited in section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement damages are specifically intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners.”
“The judgment of the court (Sir Terence Etherton MR, King and Moylan LJJ), referred, at [9], to the importance attached to the status of marriage: a “person’s marital status is important for them and for the state” because of the “specific rights and obligations” derived from that status “and not any other form of relationship”: “It is, therefore, of considerable importance that when parties decide to marry in England and Wales that they, and the state, know whether what they have done creates a marriage which is recognised as legally valid.”
“As referred to in para 9 above, marriage creates an important status, a status “of very great consequence”, per Lord Merrivale P in Kelly (orse Hyams) v Kelly(1932) 49 TLR 99 , 101. Its importance as a matter of law derives from the significant legal rights and obligations it creates. It engages both the private interests of the parties to the marriage and the interests of the state. It is clearly in the private interests of the parties that they can prove that they are legally married and that they are, therefore, entitled to the rights consequent on their being married. It is also in the interests of the state that the creation of the status is both clearly defined and protected.”
“It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
“47. The Court recalls that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Beyond a person's name, his or her private and family life may include other means of personal identification and of linking to a family. An individual's ethnic identity must be regarded as another such element. Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66,4 December 2008 , and the case-law cited therein).”
“49. Thirdly, "[t]he court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation. This is only the case, however, if such policy or measure has no 'objective and reasonable' justification, that is, if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality' between the means employed and the aim sought to be realised": Guberina , para 71. The judgments cited in support of that proposition included DH v Czech Republic. This is what is described in the Convention case law as "indirect discrimination". It can arise in a situation where a general measure or policy has disproportionately prejudicial effects on a particular group. It is described as "indirect" discrimination because the measure or policy is based on an apparently neutral ground, which in practice causes a disproportionately prejudicial effect on a group characterised by a salient attribute or status. 50. The concept of indirect discrimination has only gradually come to be recognised by the European court. An early example is Hoogendijk v The Netherlands(2005) 40 EHRR SE22 , where a requirement to qualify for a social security benefit affected more women than men. The court held that "where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule - although formulated in a neutral manner - in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex" (p 207). The government having failed to do so on the facts of the case, the court held that "the question therefore arises whether there is a reasonable and objective justification for the introduction of [the measure in issue]". On the facts, it was held that there was.”
“53. Following the approach laid down in these and other cases, it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of indirect discrimination. Once a prima facie case of indirect discrimination has been established, the burden shifts to the state to show that the indirect difference in treatment is not discriminatory. The state can discharge that burden by establishing that the difference in the impact of the measure in question is the result of objective factors unrelated to any discrimination on the ground alleged. This requires the state to demonstrate that the measure in question has an objective and reasonable justification: in other words, that it pursues a legitimate aim by proportionate means (see, in addition to the authorities already cited, the judgment of the Grand Chamber in Biao v Denmark(2016) 64 EHRR 1 , paras 91 and 114 ).”
“As previously explained, a presumption of discrimination on the ground of gender having been raised as a result of the fact that the limitation affects a greater number of women than men, it is necessary to consider whether the measure has an objective and reasonable justification: that is to say, whether it pursues a legitimate aim, and does so by proportionate means. In that regard, the European court has held that very weighty reasons have to be put forward before a difference in treatment on the ground of gender can be regarded as compatible with the Convention, whether the alleged discrimination is direct or indirect (Di Trizio v Switzerland (Application No 7186/09) (unreported) given2 February 2016 (“Di Trizio”), paras 82 and 96).”
“56 Notwithstanding those differences in formulation, it is clear that the same principles underlie the concept of indirect discrimination in the Convention, EU and domestic contexts. Broadly speaking, the concept of a “measure” does the same work as a “PCP” in EU law, and the requirement that it has “disproportionately prejudicial effects” (or “affects a disproportionate number of members”) on the relevant group essentially corresponds to the requirement that it puts members of that group at “a particular disadvantage”
“72. It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory. It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be.”
“197. In short, more women than men are affected because more women than men are bringing up children. That is an objective fact. There is no suggestion that that is itself the result of discrimination on the ground of sex. … 199. Once it is understood that the legitimate aims of the measure could not be achieved without a disproportionate impact on women, arising from the demographic fact that they form the majority of parents bringing up children, the only remaining question which can be asked, in relation to proportionality, is whether the inevitable impact on women outweighed the importance of achieving the aims pursued.”
“33. The gender of bereavement benefit claimants is compared, for new claimants in the final three years of legacy benefits, to the first three years of BSP. The vast majority of bereavement benefit claimants are female, at 71% under the legacy system, and similarly at 73% in the BSP claimant group. 34. This higher proportion of female (surviving claimants) is largely owing to a higher death rate in men of working age, than women, who tend to live longer. As reported by the ONS, ‘Life expectancy at birth in the UK in 2017 to 2019 was 79.4 years for males and 83.1 years for females. Another reason is that the claimant must be of working age to claim, not the deceased partner. With many marriages, the man is older than the woman, as found in ONS reports for England and Wales, ‘the average age at marriage of opposite-sex couples was 38.0 years for men and 35.7 years for women in 2017. Therefore, it is likely there would be more woman claimants than men.”
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. … (6) “An act” includes a failure to act but does not include a failure to— (a)introduce in, or lay before, Parliament a proposal for legislation; or (b)make any primary legislation or remedial order.”
“62. True it is that sections 3 and 4 of the HRA are not made expressly subject to the “victimhood” requirement which affects sections 6 and 7: R (Rusbridger) v Attorney General[2004] 1 AC 357 , para 21, per Lord Steyn; though they must undoubtedly be subject to the usual rules regarding standing in public law proceedings. However, a capacity to commence general proceedings to establish the interpretation or incompatibility of primary legislation is a much more far-reaching power than one to take steps as or in aid of an actual or potential victim of an identifiable unlawful act. Further, Parliament’s natural understanding would have reflected what has been and is the general or normal position in practice, namely that sections 3 and 4 would be and are resorted to in aid of or as a last resort by a person pursuing a claim or defence under sections 7 and 8: see Lancashire County Council v Taylor[2005] EWCA Civ 284 ;[2005] 1 WLR 2668 , para 28, reciting counsel’s submission, and paras 37-44, concluding that, to exercise the court’s discretion to grant a declaration to someone who had not been and could not be “personally adversely affected” would be to ignore section 7. This being the normal position, it is easy to understand why there is nothing in section 71 to confer (the apparently unlimited) capacity which the Commission now suggests that it has to pursue general proceedings to establish the interpretation or incompatibility of primary legislation under sections 3 and/or 4 of the HRA, in circumstances when its capacity in the less fundamental context of an unlawful act under sections 6 and 7 is expressly and carefully restricted.”
“[19] In Senator Lines GMBH v Austria and Others[2006] 21 BHRC 640 the Grand Chamber of the ECtHR, in determining whether the particular application was admissible, reflected on the concept of “potential victim.”
“However, for an applicant to be able to claim to be a victim in such a situation he must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient...”
“Lord Reed concluded that the "manifestly without reasonable foundation" formulation still had a part to play, but that the approach which the Court had followed since Humphreys should be modified in order to reflect the nuanced nature of the judgment which is required. He stressed the importance of avoiding a mechanical approach based on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant. The Courts should generally be very slow to intervene in areas of social and economic policy such as housing and social security, but as a general rule, differential treatment on grounds such as sex or race nevertheless requires cogent justification.”
“[The] effect [of existing authorities] can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.”
“Like Maurice Kay LJ, I would accept that any rule which differentiated benefits or rights specifically by reason of disability would require weighty reasons; prima facie it is hard to see how it could be justified and there would need to be very good reason to explain why it was being adopted. But it would be absurd to apply the same requirement to cases of indirect discrimination, particularly in circumstances where there is equality of treatment and the contention is that there should not be.”
“Once it is understood that the legitimate aims of the measure could not be achieved without a disproportionate impact on women, arising from the demographic fact that they form the majority of parents bringing up children, the only remaining question which can be asked, in relation to proportionality, is whether the inevitable impact on women outweighed the importance of achieving the aims pursued. Parliament decided that the importance of the objectives pursued by the measure justified its enactment, notwithstanding its greater impact on women. I see no basis on which this court could properly take a different view.”
“It is also important to bear in mind that almost any legislation is capable of challenge under article 14. Judges Pejchal and Wojtyczek observed in their partly dissenting opinion in JD, para 11: “Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.”
“Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.”” “Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.” “Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.””
“A policy in favour of marriage or civil partnership may constitute justification for differential treatment, when children are not involved. But it cannot do so in relation to a benefit targeted at the needs and well-being of children.”