Coherence and consistency: the need to avoid judicial confusion and its consequences under the Human Rights Act 1998

– Thomas Yeon, Notes Editor (Public Law) 

Case Note: In re Siobhan McLaughlin [2018] UKSC 48[1]

  

The thorny nature of a declaration of incompatibility (“DoI”) under section 4 Human Rights Act 1998 (“HRA”), and its role vis-a-vis the Parliament in alerting the latter to Convention-incompatible legislations, has been of topical interest for understanding the role of the courts in the context of protection of human rights in the UK, and its role vis-a-vis Parliament in alerting the latter to Convention-incompatible legislation. It is therefore pertinent that courts adopt a principled and accessible approach in determining whether a DoI should be granted. Following that, as the courts are expected to assess the Convention compatibility of the piece(s) of legislation before them alleged to be incompatible with the Convention, it is also important that the courts adopt a consistent and principled approach under s.2 HRA 1998. This case note analyses the Supreme Court’s decision in In re Siobhan McLaughlin,[2] which sheds light on the two aforementioned sections.[3] Two arguments will be made. Firstly, examining Lady Hale’s approach to and the threshold for granting a DoI, it argues that the s.4 approach proposed is unsatisfactory and fails to clarify the confusion generated by earlier Supreme Court cases. Secondly, analysing the different judges’ approaches to consideration of Strasbourg jurisprudence under s.2 and their impacts on their respective decisions, the case note observes that a principled approach would be beneficial to the court’s assessment of Strasbourg jurisprudence under s.2, which would impact on the court’s conclusion on an application for a DoI.

Facts and appellate history

Ms McLaughlin is a widow with four children. She was not married to her (now deceased) partner, Mr Adams, because of his personal preferences. Mr Adams had made sufficient national insurance contributions for Ms McLaughlin to be able to claim a bereavement payment and widowed parent’s allowance (“WPA”); she would be entitled to them under s.39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“the 1992 Act”), had they been married. Section 39A provides that the section applies where (a) “a person whose spouse or civil partner dies on or after the appointed day is under pensionable age at the time of the spouse’s or civil partner’s death, or…(provision about a man whose wife died).”

Having her claims for bereavement payment and WPA rejected by the Northern Ireland Department for Communities, Ms McLaughlin applied for judicial review of that decision on the ground that s.39A was incompatible with Article 14 of the European Convention on Human Rights (“ECHR”), read in conjunction with either Article 8 or Article 1 of the First Protocol (“A1P1”). The claim succeeded in part before Treacy J in the High Court. The Court of Appeal held unanimously that s.39A of the 1992 Act was compatible with the Convention. Ms McLaughlin appealed.

Before the Supreme Court, the Appellant argued that the difference in treatment is largely based on the birth status of the children, which is a “suspect ground,” requiring particularly careful scrutiny. The marriage condition has the effect that (almost) all the children adversely affected are “illegitimate,”[4] and all, or almost all, the children positively affected will be “legitimate.”[5] On the other hand, the Respondent submitted that the legitimate aim of the 1992 Act (including s.39A) was to promote the institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions.

Relevant Strasbourg jurisprudence

In Shackell v United Kingdom,[6] the European Court of Human Rights (“ECtHR”) declared inadmissible a complaint that denying widow’s benefits to unmarried surviving partners discriminated against the survivor and her children on the ground of her unmarried status and the children’s “illegitimacy.” Relying on the Commission’s view in Lindsay v United Kingdom,[7] which held that marriage is different from cohabitation, the ECtHR held that the applicant’s situation was not comparable to that of a widow, although it also went on to hold that in any event the difference in treatment was justified, and hence application inadmissible.

Judgement and the court’s observations on (i) the consideration of Strasbourg jurisprudence and (ii) the approach on making a declaration of incompatibility

Lady Hale’s approach to sections 2 and 4 Human Rights Act 1998

Distinguishing Shackell from the present case, Lady Hale noted that it cannot be regarded as “conclusively against the conclusion that for this purpose the situations are analogous.” The court in Shackell, unlike Treacy J at first instance in the present case, did not examine the purpose of each benefit separately and ask whether they should be distinguished when it came to the justification of unmarried parents and their children.[8] Moving on to the substance and purpose of the 1992 Act, Lady Hale held that it is not a proportionate means of achieving the legitimate aim of privileging marriage to deny the Appellant and her children the benefit of Adams’ contributions on the basis of them not being married to one another.[9] The allowance under the 1992 Act existed “because of the responsibilities of the deceased and survivor towards their children,”[10] this view being “reinforced by international obligations” the United Kingdom is under.[11]

Concluding that s.39A of the 1992 Act is incompatible with Article 14 ECHR when read in conjunction with Article 8, Lady Hale noted, in an ambiguous manner and apparently leading to no obvious conclusions, that the “operation of exclusion of all unmarried couples is not necessarily incompatible.”[12] The test for incompatibility under s.4 “is not that the legislation must operate incompatibly in all or even nearly all cases. It is enough that it will inevitably operate incompatibly in a legally significant number of cases.”[13]

Lord Mance’s concurrence on Strasbourg jurisprudence

Agreeing with Lady Hale’s judgement, Lord Mance also made some brief observations on Strasbourg jurisprudence in the present case. Noting that the existence of marriage was a condition of eligibility for widowed mother’s allowance in Shackell, he then proceeded to note that the reasoning in Shackell “fails to address the clear purpose of this allowance, namely to continue to cater, however broadly, for the interest of any relevant children.”[14] This is a very clear instance of a purposive approach to the interpretation of s.39A, and also looking into the broader objectives of the 1992 Act as a whole.

Observing on the nature of the 1992 Act, Lord Mance noted that the refusal in question to partners who are neither married nor civil partners “cannot simply be regarded as a detriment to the survivor of the couple.”[15] The refusal would inevitably operate in a significant number of cases. As a preliminary observation, however, it should be noted that Shackell cannot be said to reach a contrary or totally different conclusions. The main issue, as the majority appears to strongly have in mind, is that the considerations in Shackell did not include the child. The considerations in Shackell, however, clearly included the surviving spouse - the allowance for which is also a central issue in the present case. The well-being and interest of the surviving spouse in the present case, therefore, cannot be said to exclude from the range of purpose(s) the Act may be considered to have.

Lord Hodge’s dissent on the applicability of Strasbourg jurisprudence (and his minority conclusion)

The main thrust of Lord Hodge’s dissent focuses on the applicability of Shackell to the present case, of which it led him to the conclusion that the 1992 Act is not incompatible with the ECHR. Firstly, Lord Hodge noted that Shackell and its line of authority provide “a clear answer to a complaint based on Article 14 taken with A1P1.”[16] The ECtHR’s treatment of marriage and civil partnership as conferring a status which distinguishes them from cohabitation, while not binding on the Supreme Court,[17] is a “very important component of any analysis of challenge under Article 14 taken together with Article 8…”[18]

Moving on to observe the characteristics of the WPA, Lord Hodge held that the reasoning of Shackell, which recognises the importance of the status of the surviving spouse, is “directly relevant and strongly supports the conclusion that the co-habiting survivor is not analogous to the Survivor who was married to or in a civil partnership with the Deceased.”[19] Although the WPA is payable only if the survivor is responsible for the care of the children who were at the date of death the responsibility of one or both spouses, “it does not follow, as the majority asserts, that the purpose of the WPA is to benefit the children.”[20] WPA replaces the lost income of the deceased and gives the survivor the opportunity not to work or work less while he/she is responsible for the children.[21] If the WPA was characterised as a benefit for the bereaved children, it might be difficult to defend the rationality of the rules stating when the WPA ceases to be payable, e.g. reaching retirement age, the surviving spouse remarrying or entering into a civil partnership with another etc.[22]

The Court’s approach on the operation of a declaration of incompatibility

Two elements appear to underpin the threshold for making a DoI: (i) “inevitably” breached; (ii) inevitable breaches in a “legally significant number” of cases. While (i) is indisputably correct, the basis for the formulation of (ii) is questionable. Firstly, given the assessment of a DoI is a matter of substance - as to whether the legislation itself as applied, is incompatible with a substantive right (or more) of the ECHR, it is unclear why it would be necessary to resort to a quantitative assessment before confirming that a requested DoI should be granted. It is difficult to read in a balance between individual human rights and utilitarian concerns (if any) in granting a DoI. The requirement of satisfying a vague quantitative threshold is inconsistent with the nature of assessment under s.4, which is clearly a question of principle. The formulation of “legally significant number” is also questionable in terms of its consistency with the nature and purpose of the HRA itself, as it appears to suggest a tension and/or potential conflict between utilitarianism and individual human rights: as long as the incompatibility in question would not be found in a legally significant number of cases, it would not be necessary to grant a DoI.

Moreover, the paragraph in Christian Institute cited by Lady Hale does not support an assessment on quantitative grounds: it only stated that a piece of legislation would not be declared incompatible with Convention rights if it is able to “capable of being operated in a way which is compatible with Convention rights.”[23] While an evaluation of the formulation of the assessment for granting a DoI as elucidated in Christian Institute is beyond the scope of this case note, it is unclear how the formulation in the case supports the quantitative approach adopted by Lady Hale. Given the HRA is conceived to “bring rights home”[24] and makes Convention rights more accessible domestically, it is unclear why it would be necessary to balance the incompatibility in an individual case with other similar cases in which incompatibility may not be found.

More problematically, the DoI test formulation in the present case finds no support from recent Supreme Court approaches to determining whether a DoI should be granted. Firstly, in R (T) v Secretary of State for the Home Department, Lord Wilson noted that a DoI is a declaration “only that it is capable of operating incompatibly and, almost always, that it has operated incompatibly in the case before the court.”[25] Moreover, given a DoI “does not affect the validity, continuing operation or enforcement of [the impugned legislation],”[26] it is unclear why it would be necessary to impose the additional hurdle of “legally significant’ as a matter of judicial restraint in making a DoI. Secondly, Lady Hale’s formulation also does not clarify the confusion generated by Lord Kerr’s observation in Nicklinson v Ministry of Justice, who noted that courts have a “constitutional authority” to make a DoI.[27] From Nicklinson, it was not clear what is the threshold for triggering the court’s ability to issue a DoI as a matter pursuant to its constitutional authority. This obfuscates the principles on which the court is authorised to make a DoI. Furthermore, it is unclear whether the authority to issue a DoI can be coined as “constitutional” in nature. This uncertainty is based on two reasons: (i) the status of the HRA as a “constitution” is disputable, given it was passed as a piece of ordinary legislation and is possible to be subject to implied repeal;[28] (ii) it is unclear how the nature of a DoI being of “constitutional” authority in nature would imply the need for a quantitative assessment of any sort, as Lady Hale believes to be necessary. This suggests a degree of inconsistency in how courts approach the requirement of and assessment on the need to make a DoI. If the statute is so important that it ought to be branded of being of “constitutional importance,” bearing in mind that it is intended to improve the accessibility of rights for every individual as rights holders,

The court’s approach under section 2

While not an explicit issue in the case, the difference between the majority and Lord Hodge in approaching Shackell merits attention, as it determined the judges’ respective views on the compatibility of the 1992 Act with the ECHR.[29] It is submitted that Lord Hodge’s approach should be preferred. Firstly, Lord Hodge’s observation of the similar aims of the legislation in question in Shackell and the 1992 Act reflects that both legislations share the similar purpose of providing allowances to widowed spouses. Given the strong parallel drawn in purposes, it would be confusing if the court then decides to disregard the role of Strasbourg jurisprudence in the present case. Even if Shackell and the present case may not share identical purposes, it would be too hasty for the majority to not consider the purposes in detail (and the overlap between them, if any) before deciding not to follow it.

Secondly, the majority’s analysis, most clearly reflected in Lord Mance’s consideration that the 1992 Act “cannot simply be regarded as a detriment to the survivor of the couple,” fails to articulate clearly the fundamental differences between the legislation in the present case and the Shackell line of authority. Instead of noting the weight that may be given to the objective of providing allowances to widowed spouses, the majority moved on quickly to consider the impact(s) of the 1992 Act on children, whom they appeared to consider to be the more important beneficiary of the impugned legislation. This appears inconsistent with the Supreme Court’s previous approach under s.2, which is most clearly articulated by Lord Neuberger in Manchester City Council v Pinnock - that domestic courts should follow Strasbourg jurisprudence where there is “a clear and constant line of decisions whose decisions are not inconsistent with some fundamental substantive or procedural aspect of English law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle…”[30] While it is not denied that the 1992 Act may pursue more purposes than the legislation under question in Shackell, the lack of any fundamental differences between the two suggest that Shackell should have been followed.

Tangential remarks: the relationship between sections 2 and 4 Human Rights Act 1998

Last but not least, it is submitted that the case also sheds some light on the relationship between sections 2 and 4 HRA 1998. The difference between the majority and minority’s approach to Shackell, and subsequently their different conclusions on s.4, boil down to a matter of characterising the impugned legislation in question. The majority, instead of considering any significant parallels between the pieces of legislation under comparison, focused heavily on the bereavement of children in the present case; the fact that they are more concerned at the domestic statute itself risks not giving appropriate and sufficient scrutiny to the weight and/or applicability of Strasbourg jurisprudence under s.2 HRA 1998. In contrast, Lord Hodge’s more incremental approach, as analysed above, is more favourable.

The case also, interestingly, suggests that there is no necessary correlation between following Strasbourg jurisprudence and making a DoI. The majority, after deciding not to apply Shackell to the present case, found an incompatibility under s.4. In contrast, after finding Shackell to be directly applicable to the present case, Lord Hodge found no incompatibility under s.4. There is no necessary connection between complying with Convention standards and finding an incompatibility of the impugned domestic statute.

Conclusion

In re Siobhan McLaughlin reveals that domestic courts are not necessarily certain of their approaches to sections 2 and 4 HRA 1998. The lack of a principled guidance, however, may lead to legal uncertainty in terms of the applicable tests under the respective section. This not only leads to potentially detrimental effects of “bringing rights home” as a principal task of the HRA, but also obfuscating the principles underlying the consideration of Strasbourg jurisprudence and assessments in deciding whether to grant a DoI. The lack of coherent and consistent principles show that it is necessary for courts to reconsider the principles and factors influencing the assessment under sections 2 and 4 HRA 1998 respectively, in order to ensure that litigants can be certain of the courts’ approaches in determining a Convention rights claim.

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[1] Many thanks to Professor Conor Gearty and Nick Kilford for their comments on an earlier draft. All errors remain on my own.

[2] [2018] UKSC 48.

[3] The court did not explicitly stated an engagement of section 2 HRA 1998, but its approach to consideration of Strasbourg jurisprudence is a prime example of a court’s considerations under section 2.

[4] i.e. born to parents who are not married to each other

[5] i.e. born to parents who are married to one another.

[6] ECtHR 27 April 2000, app. no. 45851/99. The ruling was confirmed in Burden v United Kingdom (2008) 47 EHRR 38, in which the Grand Chamber at [62]-[63] agreed with Shackell that marriage conferred a special status, but that was for the purpose of holding that sisters who had lived together all their adult lives were not in an analogous situation to married couples or civil partners for the purpose of inheritance tax relief

[7] (1987) 9 EHRR CD 555.

[8] (n 2) [28].

[9] ibid, [38].

[10] ibid, [39].

[11] ibid, [40].

[12] ibid, [43].

[13] ibid. On this test, Lady Hale cited Christian Institute v Lord Advocate [2016] UKSC 51, [88]. At [88] of Christian Institute, Lord Neuberger noted that: “...an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights”

[14] ibid, [49].

[15] ibid.

[16] ibid, [64].

[17] Under s.2(1) Human Rights Act 1998, if a domestic court “must take into account” Strasbourg jurisprudence when it considers “relevant to the proceedings in which that question has arisen.”

[18] (n 16).

[19] (n 2) [79].

[20] ibid, [74].

[21] ibid, [75].

[22] ibid, [76].

[23] (n 13).

[24] “Rights Brought Home: the Human Rights Bill” (October 1997)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf> (accessed 23rd February 2019).

[25] [2014] UKSC 35, [52].

[26] ibid, [53].

[27] [2014] UKSC 38, [322].

[28] On the question of whether the Human Rights Act 1998 may constitute a “constitutional” statute and thus enjoying a “superior” status compared to other pieces of ordinary legislation, see Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195, at [62]. Aileen Kavanagh observes that in terms of status, the Human Rights Act lacks formal supremacy as it makes no provision making it harder to repeal than any other ordinary legislation: A Kavanagh, Constitutional Review under the Human Rights Act (2009), 293.

[29] On a related note, it is interesting to note that the judges discussed the applicability of Strasbourg jurisprudence without actually mentioning the use of s.2 HRA 1998. It is submitted that the lack of reference to the HRA when considering the applicability of Strasbourg jurisprudence is suggestive of the court’s awareness to develop domestic common law jurisprudence with comparative insights from Strasbourg, instead of relying overtly on the HRA itself. This looms in a larger background, which cannot be discussed in the limited space of this case note, of the Conservative Government’s desire to repeal the Human Rights Act with a British Bill of Rights and the court’s corresponding role and awareness of developing a domestic human rights jurisprudence regime without always having recourse to Strasbourg via  the Human Rights Act.

[30] [2010] UKSC 45, [48].