Rodriguez v Minister of Housing of the Government and another
| Jurisdiction | UK Non-devolved |
| Judge | LADY HALE |
| Judgment Date | 14 December 2009 |
| Neutral Citation | [2009] UKPC 52 |
| Court | Privy Council |
| Docket Number | Appeal No 0028 of 2009 |
| Date | 14 December 2009 |
[2009] UKPC 52
Lord Phillips
Lady Hale
Lord Collins
Sir Jonathan Parker
Sir Henry Brooke
Privy Council
Appellant
Rabinder Singh QC
Karon Monaghan Q
Professor Aileen
McColgan
John Restan
(Instructed by Myers, Fletcher & Gordon)
Respondent
James Neish QC
Michael Llamas
(Instructed by Penningtons Solicitors LLP)
Gibraltar is a small place and affordable housing is in short supply. At issue are the policies of the Housing Allocation Committee, the statutory body which is responsible for the allocation of Government housing. Their policy is to grant joint tenancies to couples only if they are married to one another or have a child in common. This inevitably excludes same sex couples who can neither marry nor ave children together. Is such a difference in treatment unconstitutional?
The history
The appellant is the tenant of a modest Government flat. She lives there with her same sex partner. They have been in a relationship together for 21 years. It is a loving, monogamous, permanent, sexually intimate and financially inter dependent relationship. The appellant is the home maker and her partner is the bread winner. They are unable to marry or enter into a civil partnership in Gibraltar and do not satisfy the residence requirements either to enter a civil partnership in the United Kingdom or to marry in Spain. If they were married, the appellant's partner would have a statutory right to be granted a new tenancy of the flat when the appellant tenant died, under the successor to section 12 of the Housing (Special Powers) Act 1972, which was the legislation in force at the time of these events. To provide her partner with long term security in the event of her death, the appellant applied to the Committee in October 2006 for them to be granted a joint tenancy.
In February 2007, the Committee refused that application, although they were prepared to accept an application from the appellant's partner for separate accommodation in her own name. The reason they eventually gave in March 2007 was that "only parents, spouses or children may be included". The position was later explained in more detail in the witness statement of Dr Ron Coram, the Principal Housing Officer of the Ministry of Housing:
"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".
She applied to the Supreme Court of Gibraltar for a declaration that the refusal to grant a joint tenancy was unlawful on four grounds: first, discrimination, contrary to sections 1 and 14 of the Constitution and/or the common law principle of equality; second, unjustified interference with the privacy of the home, contrary to section 7 of the Constitution; third, fettering the Committee's discretion; and fourth, the inadequacy of the Committee's reasons. In December 2008, Dudley J found that there was no discrimination: the proper comparator was not a married couple but an unmarried opposite sex couple and viewed from that perspective the Committee had not discriminated on the basis of sexual orientation. However he quashed the decision on the ground that the Housing Allocation Committee had unlawfully fettered their discretion. The Committee promptly reconsidered their decision, but concluded in February 2009 that "they must abide by departmental policies".
The appellant's appeal to the Court of Appeal was heard shortly after this and judgment given in April 2009. By a majority, the appeal was dismissed. After reviewing the authorities at some length, Sir Paul Kennedy concluded that the policy "did not discriminate against the appellant, because the preference which it gave to married couples was a positive preference of a kind which the law regards as acceptable in circumstances such as these, and which did not require further justification". Sir Murray Stuart-Smith delivered a short concurring judgment and Sir William Aldous dissented.
The Constitution
Section 1 of the Constitution of Gibraltar (Annex 1 to the Gibraltar Constitution Order 2006) is declaratory and explanatory:
"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.
Section 7 deals with protection for privacy of home and other property, "home" clearly having an expansive meaning in this context. The effect is very similar to article 8 of the European Convention on Human Rights (ECHR), save that the list of legitimate aims is longer and the burden of proving that a law or act done under a law is not "reasonably justifiable in a democratic society" lies upon the person claiming that her rights have been violated. The material provisions for our purposes are:
"(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).
Section 14 deals with protection from discrimination on prohibited grounds:
"(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."
Most of the exceptions set out in subsections (4) and (5) are not relevant to this case. However subsection (4) might be relevant:
"(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."
Subsection (6) provides that subsection (2) shall not...
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