M v Secretary of State for Work and Pensions

JurisdictionUK Non-devolved
Judgment Date08 March 2006
Neutral Citation[2006] UKHL 11
CourtHouse of Lords
Date08 March 2006
Secretary of State for Work and Pensions

[2006] UKHL 11

Appellate Committee

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Mance



Philip Sales

Daniel Kolinsky

(Instructed by Office of the Solicitor – Department for Work and Pensions)


Karon Monaghan

Ulele Burnham

Garreth Wong

(Instructed by Liberty)


My Lords,


I have had the great benefit of reading in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I am in complete agreement with it, and would for the reasons which he gives make the order which he proposes. My noble and learned friend's comprehensive summary of the relevant materials and authorities, for which I am greatly indebted to him, enables me to indicate quite briefly (and with no intention to derogate from his reasoning) why I agree with him.


Ms M. the respondent, is the mother of two children who spend the greater part of each week with their father, her former husband from whom she is divorced. Under the Child Support Act 1991 she, as the non-resident parent, is required to contribute to the costs of maintaining the children incurred by the father as the parent with care. The amount of her contribution is calculated according to complex rules laid down in regulations made under the 1991 Act, and are in important respects modelled on rules which have for many years obtained in the administration of social security benefits. According to those rules, in assessing a person's entitlement to benefit, some account has until recently been taken of the income and outgoings of a heterosexual partner with whom an applicant is living, but not of those of a homosexual partner. This may, and often does, work to the benefit of an applicant, but may work to the applicant's disadvantage. It does so in the case of Ms M. She now lives with a homosexual partner. As applied to her, on the facts of her case, the rules result in her being required to pay more towards the maintenance of her children than she would have to pay if she were living with a heterosexual partner.


Ms M. does not complain that her rights under article 8 of, or article 1 of the First Protocol to, the European Convention are or have been violated. She claims that her situation falls within the ambit or scope of these provisions and that she is accordingly entitled to complain that her enjoyment of these rights has been the subject of adverse discrimination on the ground of sex, in violation of article 14 in conjunction with either the article or the protocol or both.


It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol ("IFP"), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. Like my noble and learned friend in para 60 of his opinion, I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.


Like Kennedy LJ in the Court of Appeal, I do not think the enhanced contribution required of Ms M. impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M. has less money to spend than if she were required to contribute less (or would do so, but for the discretionary adjustment to which my noble and learned friend refers in paragraph 46 of his opinion). But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent's liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which IFP is directed.


Even if the child support regime is, in the respect complained of, within the ambit of a Convention right, Ms M's complaint of discrimination is in my view anachronistic. By that I mean that she is applying the standards of today to criticise a regime which when it was established represented the accepted values of our society, which has now been brought to an end because it no longer does so but which could not, with the support of the public, have been brought to an end very much earlier. Historically, both the law and public opinion withheld their sanction from a relationship between a man and a woman which was not sanctified by marriage or at least regularised by civil ceremony, and homosexual relationships were criminalised or condemned. When extra-marital heterosexual relationships became more generally accepted by the law and public opinion, recognition of homosexual relationships (even of those no longer criminal) was still withheld. Even now there remain bodies of opinion in this country (and much larger bodies of opinion in some other countries) for whom such recognition is still a step too far. But a democratic majority, by enacting the Civil Partnerships Act 2004, has established a new consensus and removed the feature of the old social security and child support regimes of which Ms M. complains. If such a regime were to be established today, Ms M. could with good reason stigmatise the regime as unjustifiably discriminatory. But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which, given the size of the overall task and the need to recruit the support of the public, could scarcely have been reformed sooner.


My Lords,


The Child Support Act 1991 made provision for the payment of maintenance for children whose parents are living apart. The effect of regulations made under the Act was that in some circumstances the payments due from a non-resident parent living with a person of the opposite sex as husband and wife were less than the amounts due from a corresponding non-resident parent living with a person of the same sex. Hence this claim for unlawful discrimination.


After the proceedings started the impugned regulations were amended by the Civil Partnership Act 2004. This Act came into force on 5 December 2005. The alleged discrimination no longer exists. The question before the House is whether the law in force until 5 December 2005 violated the claimant's Convention rights.

Article 14 and the claimant's family life


The primary claim advanced in the proceedings was that the difference in treatment of same sex couples and heterosexual couples violated the claimant's Convention right under article 14 of the European Convention on Human Rights taken in conjunction with the protection afforded to family life by article 8. Thus the first question for consideration is whether the facts of this case engage article 14 as claimed.


This question gives rise to a definitional problem. Article 14 does not create a right independently of the other substantive provisions of the Convention. That is trite law. Instead, article 14 guarantees that 'enjoyment of the rights and freedoms set forth in this Convention' shall be secured without discrimination on the stated grounds.


The subject matter thus guaranteed contrasts sharply with the subject matter of article 1 of the twelfth protocol. This article, not yet operative in this country, guarantees the 'enjoyment of any right set forth by law' without discrimination. The language of article 14, and the contrast with the generality of the language of article 1 of the twelfth protocol, might suggest that article 14 is aimed exclusively at the way a state discharges its obligations under the other substantive articles of the Convention.


That is not how the European Court of Human Rights has interpreted article 14. Under the Strasbourg jurisprudence it is now well established that article 14 is not so confined. Article 14 has a wider scope than this. This wider interpretation must now be regarded as settled law even though it can give rise to difficulty in identifying the extended boundary of article 14.


The extended boundary identified in the Strasbourg jurisprudence is that, for article 14 to be engaged, the impugned conduct must be within the 'ambit' of a substantive Convention right. This term does not greatly assist. In this context 'ambit' is a loose expression, which can itself be interpreted widely or narrowly. It is not a self-defining expression, it is not a legal term of art. Of itself it gives no guidance on how the 'ambit' of a Convention article is to be identified. The same is true of comparable expressions such as 'scope' and the need for the impugned measure to be 'linked' to the exercise of a guaranteed right.


The approach of the ECtHR is to apply these expressions flexibly. Although each of them is capable of extremely wide application, the Strasbourg jurisprudence lends no support to the suggestion that any link, however tenuous, will suffice. Rather, the approach to be distilled from the Strasbourg jurisprudence is that the more seriously and directly the discriminatory provision or conduct...

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