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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Rodriguez v Minister of Housing of the Government & Anor (Gibraltar) [2009] UKPC 52 (14 December 2009) URL: https://www.bailii.org/uk/cases/UKPC/2009/52.html Cite as: [2010] Eq LR 186, 28 BHRC 189, [2009] UKPC 52, [2010] UKHRR 144 |
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[2009] UKPC 52
Privy Council Appeal No 0028 of 2009
JUDGMENT
Nadine Rodriguez v (1) Minister of Housing of the Government (2) The Housing Allocation Committee
From the Court of Appeal of Gibraltar
before
Lord Phillips
Lady Hale
Lord Collins
Sir Jonathan Parker
Sir Henry Brooke
JUDGMENT DELIVERED BY
LADY HALE
ON
14 December 2009
Heard on 21 October 2009
Appellant Rabinder Singh QC Karon Monaghan QC Professor Aileen McColgan John Restano (Instructed by Myers, Fletcher & Gordon) |
Respondent James Neish QC Michael Llamas (Instructed by Penningtons Solicitors LLP ) |
LADY HALE
The history
"Applications for joint tenancies are generally approved if the application is made by a married partner, parent, adult child or common law partner of the tenant. The protection of the family and in particular children is considered of prime importance. . . In the case of common law partners approval is only granted if the common law partner of the tenant and the tenant have at least one minor child in common living with them . . . The reason for granting joint tenancies to common law partners with children in common is to protect the interests of the children by providing each of the parents with equal tenancy rights and in the spirit of protection of the family. . . .Similar applications by common law heterosexual partners who do not have children in common are not favourably considered."
The appellant's request was refused on the basis of that policy and "in the absence of any circumstance which would warrant departure from that policy".
The Constitution
"It is hereby recognised and declared that in Gibraltar there have existed and shall continue to exist without discrimination by reason of any ground referred to in section 14(3), but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms, namely –
(a) the right of the individual to life, liberty, security of the person, the enjoyment of property and the protection of the law;
(b) freedom of conscience, of expression, of assembly, of association and freedom to establish schools; and
(c) the right of the individual to protection for his personal privacy, for the privacy of his home and other property and from deprivation of property without adequate compensation,
and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
It would appear, therefore, although nothing turns upon the point in this case, that the substance of the rights there listed is protected, not by section 1, but by the later sections which spell them and their limitations out in more detail. Section 1 does however insist that they exist without discrimination on the prohibited grounds.
"(1) Every person has the right to respect for his private and family life, his home and his correspondence. …
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
(a) in the interests of defence, the economic well-being of Gibraltar, public safety, public order, public morality, public health, town planning, the development or utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit; . . .
except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."
Section 1, of course, has already provided that the right to protection for the privacy of the home, exists without discrimination on any ground referred to in section 14(3).
"(1) Subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect.
(2) Subject to subsections (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority.
(3) In this section, the expression 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex, creed, property, birth or other status, or such other grounds as the European Court of Human Rights may, from time to time, determine to be discriminatory, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description."
"(4) Subsection (1) shall not apply to any law so far as that law makes provision – . . .
(e) whereby persons of any such description as is mentioned in subsection (3) may be subjected to any disability or restriction or may be accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is consistent with the provisions of the European Convention on Human Rights."
"(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3) may be subjected to any restriction on the rights and freedoms guaranteed by sections 7 . . . , being such a restriction as is authorised by section 7(3) . . . "
"the Court reiterates that according to its established case law discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. . . Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, 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.".
"The right not to be discriminated against . . . is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
In other words, just as like cases must be treated alike, unlike cases must be treated differently.
Discriminatory treatment
"the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
"In Shackell, the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors' benefits, since 'marriage remains an institution which is widely accepted as conferring a particular status on those who enter it'. The Grand Chamber considers that this view still holds true."
"The Court has had previous occasion to remark that, notwithstanding social changes, marriage remains an institution that is widely accepted as conferring a particular status on those who enter it and, indeed, it is singled out for special treatment under article 12 of the Convention. It has held, for example, that the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government"
The Court dealt rather summarily with the argument that the couple were unable to get married at the relevant time by accepting that the United Kingdom could not be criticised for failing to legislate for civil partnerships earlier than it did. This confirms the prescience of the majority of the House of Lords in M v Department of Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, who reached the same conclusion about the discriminatory treatment of same sex couples under the child support scheme.
Justification
"The distinction between heterosexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to 'everyone', including homosexuals, by article 8 since Dudgeon v United Kingdom (1981) 4 EHRR 149. If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed, marriage-like homosexual relationships . . . Society wants its intimate relationships, particularly but not only if there are children involved, to be stable, responsible and secure. It is the transient, irresponsible and insecure relationships which cause us so much concern."
The aim of discouraging homosexual relationships is equally impermissible under sections 7(1) and 14 of the Constitution of Gibraltar.
In accordance with the law
Conclusion