B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE BUXTON
LORD JUSTICE KEENE
| || ANTONIO MENDOZA||Appellant|
| ||- and -|
| ||AHMAD RAJA GHAIDAN||Respondent|
Mr Paul Staddon (instructed by Messrs Oliver Fisher) for the Appellant
Mr Jonathan Small (instructed by Hugh Cartwright & Amin) for the Respondent
Mr Rabinder Singh QC (instructed by Bindman & Partners) for the intervener Stonewall
HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
Buxton LJ :
- We are required in this appeal to revisit, in the light of the European Convention on Human Rights [the Convention] and the Human Rights Act 1998 [the HRA], the decision of the House of Lords in Fitzpatrick v Sterling Housing Association  1 AC 27.
- The House was called on to construe paragraphs 2 and 3 of Schedule 1 to the Rent Act 1977, as amended:
2(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence. (2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.
3(1) Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him in the dwelling-house at the time of and for the period of two years immediately before his death then, after his death, that person……shall be entitled to an assured tenancy of the dwelling-house by succession.
The House held that although a person who had been in a same-sex relationship with a deceased tenant could qualify as a member of the tenant’s “family” under paragraph 3(1) of the Schedule, the extension made by paragraph 2(2) of that Schedule of the word “spouse” to persons “living with the original tenant as his or her wife or husband” could not include persons in a same-sex relationship. The effect of that ruling is that on the death of a tenant in a same-sex relationship that was in substance though not in form equivalent to a spousal relationship, the tenant’s partner is entitled, as a member of the tenant’s family under paragraph 3(1), to succeed to an assured tenancy of the property; but since he is not a “spouse” he cannot succeed to a statutory tenancy under paragraph 2(1). If the relationship had been a heterosexual one, but in every other respect the same, the partner would be eligible to succeed to the statutory tenancy because of the specific provision in paragraph 2(2).
- The facts that give rise to the present appeal are not materially different from those in Fitzpatrick. Although there was some dispute at the trial the judge found, and it is not now in issue, as follows. A Mr Walwyn-Jones became tenant of the demised premises in April 1983. The landlord who granted the tenancy was Mr Ghaidan’s father, now unfortunately deceased, so his son continues the matter as claimant. Mr Mendoza had shared a flat with Mr Walwyn-Jones since 1972, and moved into the demised premises with him. There was what the judge described as overwhelming evidence that Mr Walwyn-Jones and Mr Mendoza were in what Lord Nicholls called in Fitzpatrick, at p47B, a very close, loving and monogamous relationship, characterised by long-term sexual intimacy. They were therefore members of the same family for the purposes of paragraph 3 of the Schedule; and, although the judge does not seem to have so found in terms, it is inescapable on his findings of primary fact that, save for the relationship being between two persons of the same sex, they were living together in the way that spouses live together.
- The judge accordingly awarded Mr Mendoza an assured tenancy. He held that he was precluded by Fitzpatrick from awarding a statutory tenancy, and was not persuaded that the construction of paragraph 2 adopted by the House in Fitzpatrick had now to be reconsidered in the light of the Convention and of the HRA. That last question is the only matter contested in this appeal.
- Thanks to the judgement exercised by Mr Staddon and Mr Small, what at first sight seemed to be a somewhat unwieldy case was narrowed down considerably in scope. Originally the appellant submitted that he was able to rely within the Convention on all of article 8 (respect for home and private life); article 14 (discrimination); and article 1 of the First Protocol (protection of property). He was supported, in respect of article 14, by an intervention by Stonewall, and before us Mr Staddon agreed that his real case was under article 14, put quite simply that to afford a statutory tenancy to the survivor of a heterosexual relationship when the survivor of an equivalent homosexual relationship was limited to the less beneficial assured tenancy constituted discrimination on grounds of sexual orientation. In that context, article 8 and article 1 of the First Protocol were merely gateways to the application of article 14, or the context in which that article took effect. Mr Small, for his part, conceded that in the light of the decision of this court in Wilson v First County Trust (No 2)  QB 74 we were obliged to construe the Schedule, even in a case between two private individuals, in a way that was compatible with Convention rights. In some cases that obligation will not affect the outcome, since Convention rights are, in their origin and meaning, only exigible against the state. That difficulty does not however arise in respect of article 14, since in its terms it imposes on the state not merely a duty to refrain from certain conduct in relation to its citizens, but also a positive obligation to “secure” to those citizens the enjoyment of Convention rights without discrimination. Accordingly, in construing the Schedule in the context of article 14 we have to ask whether that legislative act, construed in domestic law as it was in Fitzpatrick, does indeed secure to citizens the relevant freedom from discrimination.
Article 14: preliminary
- Important guidance as to the reach and application of article 14 has recently been given by this court in Michalak v London Borough of Wandsworth  EWCA Civ 271, in §20 of the judgment of Brooke LJ, which was agreed to in terms by Park J. That guidance binds us, because a court is bound by any decision within the normal hierachy of domestic authority as to the meaning of an article of the Convention, in the same way as it is bound by such a decision as to the meaning of purely domestic law: see the observations of Judge LJ in R (Bright) v Central Criminal Court  1 WLR 662, 682D, approved by this court in Kaya v Haringey LBC  EWCA Civ 677, at §§ 36-37.
- We are therefore obliged to ask ourselves the following four questions:
i) Do the facts fall within the ambit of one or more of the substantive Convention provisions?
ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparision (“the chosen comparators”) on the other?
iii) Were the chosen comparators in an analogous situation to the complainant’s situation?
iv) If so, did the difference have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?
- Mr Small conceded that questions (ii) and (iii) had to be answered in the affirmative. The chosen comparator was the survivor of a heterosexual partnership, in an analogous situation to the claimant, and the two of them had been treated differently. Since the point may be of some importance at a later stage of the argument, I should interpose to say that those concessions were not only properly made, but inevitable. Mr Small however raised strong and detailed arguments under both question (i) and question (iv), to which issues I now turn.
Article 14: “ambit”
- Article 14 reads:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
An uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14. Jurisprudence has however established that that is not so. As it is put in Grosz, Beatson & Duffy, Human Rights (2000), § C14-10:
“It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for Article 14 to enter into play.”
A recent illustration is to be found in Petrovic v Austria (2001) 33 EHRR 14, a complaint about the refusal of the Austrian authorities to grant to men a parental leave allowance that was available to mothers. The Court held, at §26, that article 8 itself was not infringed since it did not impose any positive obligation on the state to provide the financial assistance in question. Nonetheless, at §§ 27-29:
“this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children. The Court has said on many occasions that Article 14 comes into play whenever ‘the subject-matter of the disadvantage constitutes one of modalities of the exercise of a right guaranteed’, or the measures complained of are ‘linked to the exercise of a right guaranteed’. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14-taken together with Article 8-is applicable.”
We therefore have to apply that wide view of the ambit of article 14 in relation to the two other provisions of the Convention that are relied on in conjunction with article 14.
Ambit: article 8
- The appellant did not contend that the provisions of the Schedule impinged upon his private life, but he did say that they impinged on his interest in his home, since he would after the death of his partner have a less secure position in the demised premises than he would have had if the partnership had been a heterosexual one. That, without the Rent Act, no partners of either sort would have had any rights of succession at all was nothing to the point, as the decision in Petrovic demonstrated. Mr Small sought to resist that argument on two grounds. First, article 8 was concerned only with interference with a home by the state. Since the present case was between private litigants, and it was the landlord, not the state, who wanted to expel Mr Mendoza, article 8 simply did not enter into the equation. Second, there was in any event no threat to Mr Mendoza’s home. He was perfectly well able to stay in the demised premises, living there just as he had always lived, albeit under a different legal regime from that of a statutory tenancy.
- Even if the first of these arguments were correct in its characterisation of article 8, that would not necessarily take the present case out of the “ambit” of that article. But the argument is not in any event correct in that characterisation. Somewhat like article 14, in the way mentioned in §6 above, article 8 places the state under obligations of positive action to promote the values that article 8 protects. As the Strasbourg Court put it in the early case of Marckx v Belgium (1979) 2 EHRR 330 :
“the object of the Article is essentially that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.”
That positive obligation on the part of the state, interpreted for instance in Marckx itself as requiring the passing of legislation to permit an unmarried mother to live a normal family life, is amply enough to bring legislation that does affect family life or, in this case, the home within the relevant ambit of article 8.
- Second, does the Schedule affect Mr Mendoza’s home? I am attracted to Mr Staddon’s argument that “home” should not be regarded simply as the envelope of bricks and mortar, but should extend to the rights and security of tenure in that real property. The Schedule undoubtedly affects those rights and security. But it is not necessary to go that far. Petrovic teaches that once the state has chosen to intervene in a factual area characteristic of those protected by article 8, article 14 is engaged if there is relevant discrimination in the mode of that intervention. That is this case.
- I am, therefore, satisfied that the present case falls within the “ambit” of article 8, as that is understood for the purposes of article 14. But the question would in any event seem to be already decided by authority binding on this court. In Michalak, cited in §7 above, Mance LJ said, at §55:
“I agree with Brooke LJ that the entitlement conferred by…..paragraph 3 of Schedule 1 to the Rent Act falls ‘within the ambit’ of Article 8. [It provides] protection for reasons that [its] terms show to be closely related to family life and/or use of the relevant dwelling-house as a home or residence.”
Mance LJ’s judgment was agreed with in full by Park J. It is not possible to see how there could be any relevant difference in this respect between paragraph 3 of the Schedule and paragraph 2, and none was suggested to us in argument. Paragraph 2 therefore falls “within the ambit” of article 8.
Ambit: article 1 of the First Protocol
- It is enough for the appellant’s purposes under article 14 to establish that the Schedule falls within the ambit of article 8; it is not necessary for him to go on and similarly succeed in respect of the protection of “possessions” under article 1 of the First Protocol. I would therefore not wish to express any concluded view on that point. The principal difficulty in the appellant’s way is that his interest in the demised premises at the time of the tenant’s death was, if it could be called an interest in the legal sense at all, a future interest. It appears to be provided by Marckx, cited in §11 above, that future interests do not engage article 1: see 2 EHRR at §50. We were pressed with Inze v Austria (1987) 10 EHRR 394, where the Strasbourg Court held that article 14 was engaged in respect of discrimination over future interests despite the holding in Marckx. That case however seems to have turned on what were, to English eyes, singular provisions of Austrian inheritance law, whereby the illegitimate claimant had some, but incomplete, rights on his mother’s intestacy. His claim therefore could be said not to be exclusively in respect of future rights, a consideration that the Strasbourg Court relied on, at §38 of the judgment, in distinguishing Marckx. It therefore remains uncertain whether even the generous rules of ambit provided by the jurisprudence of article 14 extend to discrimination in respect of future property interests, and I would have difficulty in deciding the case on that basis.
Question (iv) in Michalak: objective and reasonable justification
- Because the ambit of at least article 8 is engaged, a positive answer has to be given to questions (i) in Michalak, §7 above, as well as to questions (ii)-(iii). Is there nonetheless, under question (iv), an objective and reasonable justification for the discrimination or difference between heterosexual and homosexual partnerships? In an able argument, Mr Small advanced two, related, contentions. First, it fell within the legitimate ambit of the state’s discretion or judgement to arrange its housing schemes and the disposition of its housing stock, as the state had done in the Schedule. The court should not intervene. Second, if that was not right, the policy informing the Schedule, of making a distinction between heterosexual and homosexual couples, was legitimate and reasonable, and indeed required by the jurisprudence not only of the Convention but also of the European Union. I take these contentions in turn.
The state’s margin of judgement
- It is not in issue that courts will exercise “deference” in relation to decisions of Parliament, even where Convention rights are potentially engaged. That was emphasised, and in the particular context of housing policy, by this court in Poplar Housing Association Ltd v Donoghue  QB 48 at §69. Mr Small said that in the present case there were at least four competing interests that had to be taken into account, and that it fell well within the legitimate function of Parliament to decide where the balance between them should be struck. Those interests were the rights of the landlord; the desire of the survivor of the tenant to remain in place; the need to maintain fluidity in the housing market; and the policy of the Rent Act, or at least of the Schedule, to protect the family. The last claim was linked to Mr Small’s second contention, that the policy of protecting the family was approved and supported by the Convention jurisprudence, and I shall consider its substance later. I deal first with Mr Small’s more general claim.
- There are at least three reasons why any principle of deference to the will of Parliament cannot assist in this case.
- First, we are concerned with the fourth question in Michalak. That makes it quite clear that once, as in this case, discrimination is demonstrated, it is for the discriminator to establish an objective and reasonable justification for that discrimination. That is not simply a literalistic argument about burden of proof. Rather, the form of the questions in Michalak reflects the seriousness with which Convention jurisprudence views discrimination, and the limited extent to which such discrimination can be tolerated. In seeking to discharge that burden, it is simply not enough to claim that what has been done falls within the permissible ambit of Parliament’s discretion: because all that that shows is that the decisions taken are not to be regarded as necessarily unjustified. A much more positive argument is required if the burden imposed by Michalak is to be discharged.
- Second, guidance has been given on the limits of the principle of deference by Lord Hope of Craighead in R v DPP ex p Kebilene  2 AC 326 at p 380:
“It will be easier for [a ‘discretionary area of judgment’] to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”
The general organisation of housing policy, and in particular of public housing, such as was in issue in Poplar, clearly involves complex questions of social or economic policy that the courts should only enter with trepidation. But I have no hesitation in saying that issues of discrimination, which it is conceded we are concerned with in this case, do have high constitutional importance, and are issues that the courts should not shrink from. In such cases deference has only a minor role to play.
- Third, once it is accepted that we are not simply bound by whatever Parliament has decided (and although that might seem to be the logic, or the extreme result, of his argument, Mr Small agreed that the court retained a power of judgement), then we need to see whether the steps taken in implementation of the supposed policy are, not merely reasonable and proportionate, but also logically explicible as forwarding that policy. If it is accepted for the moment that Parliament seeks by the Schedule to promote the interests of landlords; flexibility in the housing market; and the protection of the family; how is any of that significantly forwarded by depriving the survivors of same-sex partnerships of statutory but not of assured tenancies? Since this part of the argument rested simply on assertion, no actual facts or evidence were available to assist us; so the court has to fall back on common sense.
- The fundamental weakness of this whole argument is two-fold. First, as to the interests of landlords and flexibility in the housing market, Parliament has, by paragraph 2(2) of the Schedule, already extended full Rent Act protection to survivors of heterosexual unmarried partnerships, a class that one would instinctively think to be much more numerous, and thus whose recognition was much more threatening to flexibility, than would be the category of same-sex partnerships. And so far as protection of the family is concerned, it is quite unclear how heterosexual family life (which includes unmarried partnerships) is promoted by handicapping persons who are constitutionally unable, or strongly unwilling, to enter into family relationships so defined. Second, if deterrence is really the objective, the means used to that end are singularly unimpressive. The more that we were told that a person holding an assured tenancy was very little if at all worse off than a statutory tenant, the less that it seemed that any effective social policy could be achieved through the award of an assured rather than a statutory tenancy.
- I am therefore quite unpersuaded that the requirements of question (iv) in Michalak are made out in this case. Mr Small however had another string to his bow. He said that it was recognised in Convention jurisprudence, and in the particular context of the legislation now under consideration, that different treatment of same-sex and of heterosexual partnerships either was not discriminatory at all, or if technically discriminatory was justified. To that argument I now turn.
The policy of the Convention: protection of the family?
- The bedrock of this submission was the admissibility decision of the Commission in S v United Kingdom (1986) 47 D&R 274. It is convenient to note at this stage that, as the industry of Mr Staddon revealed, that application resulted from the domestic proceedings in Harrogate BC v Simpson (1984) 17 HLR 205, the decision in which case in its relation to the construction of “spouse” in paragraph 2 of the Schedule to exclude same-sex relationships was specifically approved in Fitzpatrick. The applicant complained, as Mr Mendoza complains, that such a construction of paragraph 2 was discriminatory under article 14 read with article 8. The Commission held that the complaint was inadmissible. The Commission said:
“The Commission finds that the aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed by Article 8 of the Convention. The aim itself is clearly legitimate. The question remains, however, whether it was justified to protect families but not to give similar protection to other stable relationships. The Commission considers that the family (to which the relationship of heterosexual unmarried couples living together as husband and wife can be assimilated) merits special protection in society and it sees no reason why a High Contracting Power should not afford particular assistance to families. The Commission therefore accepts that the difference in treatment between the applicant and somebody in the same position whose partner had been of the opposite sex can be objectively and reasonably justified.”
Mr Small did not go so far as to say that we were bound by those observations; but he understandably argued that they strongly supported his contention that the terms of the Schedule were objectively justifiable in Convention terms.
- This argument inevitably raises the question of how much guidance, in a field such as that of society’s recognition of various forms of sexual relationship, is to be obtained from a case decided over a decade and a half ago. But before addressing that point, there is a more fundamental objection to the relevance of S v United Kingdom. The point of departure of the decision was the Commission’s finding that the aim of [the predecessor to] the Schedule was to protect the family. That was not, as was suggested to us, an opinion on the content of a Convention right, such as we are bound to take into account under section 2(1)(b) of the HRA. Rather it is a finding or assertion as to the content or policy of English domestic law: an assertion for which there is absolutely no justification. The only material that the Commission cited in support of its view of the Schedule were some passages from the judgments in this court in Harrogate Borough Council v Simpson: which however did no more than say, as did the House of Lords in Fitzpatrick, that the natural English meaning of the words “wife or husband” was gender-specific, and thus, purely as a matter of language, excluded same-sex relationships. This court said nothing to suggest that the statute had used those words deliberately in order to support or protect “the family”: and much less that there were good reasons, and it was Parliament’s policy, to protect (childless) unmarried heterosexual couples, but not unmarried homosexual couples.
- Furthermore, even if the Commission were right in concluding that protection of the family was the objective of this part of the Schedule, the deduction from that premise that homosexual couples are excluded can hardly survive the decision in Fitzpatrick. Quite apart from having to construe paragraph 2 of the Schedule, which the House did in the same terms as had this court in Harrogate BC v Simpson, the House also had to construe this very same word, “family”, as used in paragraph 3 of the Schedule. The House pointed out that in common, and indeed in legal, usage the word had very many and different implications: I would venture to refer in that regard in particular to the observations of Lord Slynn of Hadley,  1 AC at pp 34G-35C. That in itself sounds a strong warning against drawing any conclusions as to exactly who is excluded by an assumed policy of protecting “the family”. But, more precisely, the House went on to hold that, at least by the end of the twentieth century, a stable, monogamous homosexual relationship could be regarded, in the terms of paragraph 3, as a relationship between members of the same family. And so far as the policy of the Act was concerned, Lord Slynn said,  1 AC 40F:
“It seems also to be suggested that such a result in this statute undermines the traditional (whether religious or social) concept of marriage and the family. It does nothing of the sort. It merely recognises that, for the purposes of this Act, two people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”
Even therefore if the Commission had been right in S v United Kingdom in thinking that the policy of paragraph 2 is to protect the family, that assumption could not, after Fitzpatrick, be used to support an argument that the exclusion of homosexual couples from the protection of paragraph 2 is necessarily or by definition not discriminatory.
- Mr Small however argued that there was further authority, much more up to date than S v United Kingdom, that demonstrated in general terms that discrimination on grounds of sexual orientation was not recognised as a form of discrimination, alternatively was justifiable, in Convention jurisprudence.
- In Case C-249/96 Grant v South-West Trains Ltd  ICR 449 the Court of Justice had to consider whether the extension of employee travel concessions to unmarried heterosexual partners, but not to unmarried homosexual partners, constituted discrimination on grounds of sex under article 119 of the EC Treaty and article 1 of Directive 75/117/EEC. The ECJ first pointed out, at §28, that since the rule applied equally to male and female employees it was not discriminatory on grounds of “sex” narrowly understood. The Court then went on to consider, at §29, whether “persons who have a stable relationship with a partner of the same sex are in the same situation as those who are married or have a stable relationship outside marriage with a partner of the opposite sex”. It reported that the European Parliament, although deploring all forms of discrimination based on sexual orientation, had not yet introduced measures to support that view; and that the laws of the member states only gave limited protection to such a relationship. So far as the European Commission on Human Rights was concerned, at §33:
“national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of the opposite sex living together as man and wife than to persons of the same sex in a stable relationship are not contrary to article 14 of the Convention which prohibits, inter alia, discrimination on the ground of sex (see S v United Kingdom [and other Commission decisions in the same sense])”
- The Court of Justice concluded, at §35:
“It follows that, in the present state of law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationships outside marriage between persons of opposite sex. Consequently, an employer is not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex.”
- Since Convention jurisprudence is recognised as part of Community law, decisions of the Court of Justice, to the extent that they address the Convention, are of course important sources of that jurisprudence. The reach of Community law, and therefore of decisions of the Court of Justice, is however limited by the subject-matter addressed by the Community treaties. That was recognised by the Court of Justice in Grant when, in response to an argument that it should refer in deciding that case to the United Nations International Covenant on Civil and Political Rights (a provision that, like the Convention, is recognised as a source of the fundamental principles of Community law), the Court said, at §47:
“the scope of [article 119 of the EEC Treaty], as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the treaty and its legal context. It follows from the considerations set out above that Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in the main proceedings.”
- In Community law there is no general provision against discrimination on the broad range of grounds that is set out in article 14, and the Court was thus concerned not with investigating discrimination, generally understood, but with the specific provisions of the Treaty in regard to equal pay. Discrimination could therefore only enter the case in Grant through the specific wording of the Treaty provisions under consideration, article 119 and Directive 75/117: which wording, as the Court of Justice emphasised, was limited to discrimination on grounds of “sex”. Community law neither mandated nor permitted the extension of that word as used in those provisions to cover sexual orientation. And to the extent that the Court of Justice said anything directly about Convention jurisprudence, it simply repeated without further analysis the mistaken approach of the Commission in S v United Kingdom.
- Put in its starkest terms, S v United Kingdom and Grant were relied on in support of an argument that discrimination on grounds of sexual orientation was justified under article 14 because Convention authority so said. Neither case comes anywhere near to establishing that point; nor does Grant establish anything beyond the particular meaning, in Community law, of the Community rules on equal pay.
- This court bears the burden of having to construe the Convention as a living instrument. It has to ask itself, under the structure mandated by Michalak, whether discrimination on grounds of sexual orientation is excluded from the protection of article 14. Looking at that question in 2002 it seems to me that there can only be one answer. Sexual orientation is now clearly recognised as an impermissible ground of discrimination, on the same level as the examples, which is all that they are, specifically set out in the text of article 14. To include sexual orientation within this list does not depend on taking the step that was thought impossible in Grant, of analysing discrimination on grounds of sexual orientation as a case of discrimination on grounds of sex. Rather, it applies to sexual orientation the more general principles inherent in article 14.
- In Salgueiro v Portugal (2001) 31 EHRR 47 the Strasbourg Court said, at §§ 28 and 36:
“the Court can only conclude that there was a difference in treatment between the applicant and [the comparator], which was based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14 of the Convention. The Court notes in this regard that the list set out in this provision is of an indicative nature and is not definitive, as is evidenced by the adverb notamment (in English: ‘any ground such as’)……the [national] Appeal Court used a distinction dictated by considerations relating to the applicant’s sexual orientation, a distinction which cannot be tolerated under the Convention.”
I respectfully agree. No other rational reason having been advanced for the exclusion of same-sex relationships from paragraph 2 of the Schedule, the conclusion is inescapable that paragraph 2, as construed by the House of Lords in Fitzpatrick, infringes article 14.
- In order to remedy this breach of the Convention the court must, if it can, read the Schedule so that its provisions are rendered compatible with the Convention rights of the survivors of same-sex partnerships. The width of this duty, imposed by section 3 of the HRA, has been emphasised by Lord Steyn, R v A  2 WLR 1546 at 1563, in terms too well-known and respected to require repetition.
- That duty can be properly discharged by reading the words “as his or her wife or husband” to mean “as if they were his or her wife or husband”. That wording achieves what is required in the present case, and does not open the door to lesser relationships (such as, for instance, sisters sharing a house, or long-term lodgers) because those relationships do not enjoy the marriage-like characteristics that for instance Lord Nicholls discerned in Fitzpatrick, and which the judge found to have characterised the relationship between Mr Walwyn-Jones and Mr Mendoza. It is quite true, as Mr Small pointed out, that the words “husband” and “wife” are in their natural meaning gender-specific. They are also, however, in their natural meaning limited to persons who are party to a lawful marriage. Parliament, by paragraph 2(2), removed that last requirement. And Parliament having swallowed the camel of including unmarried partners within the protection given to married couples, it is not for this court to strain at the gnat of including such partners who are of the same sex as each other.
Disposal of the appeal
- I would allow the appeal; declare that paragraph 2(2) is to be read and given effect in the terms set out in §35 above; and further declare that on the death of Mr Walwyn-Jones the claimant succeeded to a statutory tenancy.
- I agree and wish only to add a few comments of my own. First, the concession made on behalf of the respondent that the appellant’s rights under the European Convention on Human Rights are relevant to the construction of paragraph 2 of Schedule 1 to the Rent Act 1977, even though this is litigation between two private individuals, was a proper one. Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, and by virtue of section 6(3)(a) this court is a public authority. It follows that this court cannot act incompatibly with a Convention right, unless (see section 6(2)) the court is acting to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with such a right.
- That patently takes one to section 3 of the 1998 Act, with its obligation on the court to read and give effect to primary and secondary legislation in a way compatible with Convention rights “so far as it is possible to do so”. It is true that, as a matter of international law, the Convention rights are only enforceable against states. But it has long been appreciated that the interference with Convention rights will sometimes come not from the state but from private individuals. Hence Strasbourg jurisprudence has recognised that in certain instances there may be a positive obligation on the state to secure the observance of such rights. Article 8 has been one of those instances: see X and Y –v- Netherlands  8 E.H.R.R. 235 at 239-240.
- Consequently the obligation on the court to construe statutes in accordance with section 3 of the 1998 Act will apply, at least in such cases, in litigation between private litigants. That was accepted by this court in Wilson –v- First County Trust (no.2)  EWCA Civ 633;  QB 74. We therefore have to read and give effect to paragraph 2 of the Schedule, so far as it is possible to do so, in a way which is compatible with Convention rights.
- Secondly, it is important to bear in mind that there does not have to be a breach of one of the substantive Articles of the Convention before Article 14 comes into play. The usual test, as was indicated by Brooke LJ in Michalak, is whether the facts “fall within the ambit of one or more of the substantive Convention provisions” (para. 20). That phrase “fall within the ambit” is one regularly found in judgments of the Strasbourg Court on this issue: see, for example, Rasmussen –v- Denmark  7 EHRR 371, para 29; Van der Mussele –v- Belgium  6 E.H.R.R. 163, para 43. One can readily understand why such an approach is adopted, since there would be little force in Article 14 if an infringement of another Article had first to be established. There would always be a breach, irrespective of Article 14.
- In the present case, it seems to me that the facts do fall clearly within the ambit of Article 8, insofar as that confers a right to respect for one’s home. I am persuaded by Mr Staddon that, where the facts involve a lessening in the degree of security of tenure enjoyed by a person, that will suffice to meet the test. It would be too narrow an approach to hold that Article 8 is only engaged where the court is proposing to make an eviction order. The tenant is exposed to a greater risk of eviction where his security of tenure is reduced, and that greater risk is enough for the court to have to consider whether there is any breach of Article 8. In addition, I fully accept the point made by Buxton LJ at para. 12 that Article 14 also comes into play because the state has itself chosen to intervene in this relationship between certain landlords and tenants. That was the approach adopted by the European Commission of Human Rights in Larkos –v- Cyprus  E.H.R.L.R. 653.
- Thirdly, I do not accept that an objective and reasonable justification for the difference in treatment of unmarried heterosexual couples and unmarried homosexual couples has been made out. Mr Small sought to identify the “legitimate aim” of this difference in treatment as being the promotion of the “family”, or as he was constrained to put it “a unit deriving from a heterosexual couple”. Nothing put before us demonstrates that this was the aim and, since it is difficult to see how such an aim would be achieved by the difference in treatment, there must be doubt as to whether that is indeed the aim of the statutory distinction. It has not been suggested that heterosexual couples, whether married or unmarried, are more likely to live together or to do so for longer because homosexual couples are denied the equivalent right of succession under the Rent Act.
- As for proportionality, one accepts that in a number of areas of social and economic policy-making the courts should grant a generous degree of deference to Parliament when it comes to striking the balance between the individual and the community. But this depends crucially on the context. The issue here is one of discrimination between two groups on the basis of their sexual orientation, rather than one of housing policy.
- Where discrimination against a minority is concerned, amounting on the face of it to a breach of Article 14 rights, the courts are entitled to require to be satisfied that a proper and rational justification for the difference in treatment has been made out. It is, as Buxton LJ has emphasised, a matter involving rights of high constitutional importance, where the courts are equipped to arrive at a judgment. It is indeed a classic role of the courts to be concerned with the protection of such minority rights. That being so, this court is entitled to ask whether there is any rational and proportionate basis for the distinction. For my part, I am not satisfied that any such basis has been established.
- I agree that there would be a breach of the appellant’s Convention rights under Article 14 unless paragraph 2(2) of the Schedule can be read so as to enable a person in his position to come within its terms. For the reasons given by Buxton LJ, I accept that, approaching the task in compliance with section 3(1) of the 1998 Act, the wording of paragraph 2(2) can be so read. I too would allow the appeal and make the declarations to which he refers.
- I agree with the judgments of Buxton LJ and Keene LJ, and there is nothing I wish to add.