The margin of appreciation

This really has been a big week. My particular interest in criminal justice led me to ignore, until just now, the biggest human rights decision of the week: In re P [2007] UKHL 38. This case concerned the right of unmarried couples to adopt. The couple in this case were opposite-sex de factos, who had jointly cared for the mother’s kid for ten years and wanted to make that joint parenting (but not their relationship) ‘official’. That ambition was blocked by the Adoption (Northern Ireland) Order 1987:

14(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraph[s] (2) …

(2) An adoption order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.

The substantive human rights issue was whether this order was at odds with the ECHR’s equality rights.

One question under the ECHR is whether discrimination against unmarried couples if allowed. This depends on whether being unmarried is a ‘status’. Amazingly, the Court of Appeal held that being unmarried isn’t a status, but just a lack of status. Baroness Hale, while forgiving of the take of ‘family lawyers’ on this topic, held, along with the other laws, that lack of status is a status. This wouldn’t arise as an issue in Victoria, which, while having a closed list of attributes for the purposes of the Charter’s equality rights, has a somewhat lengthier list than the ECHR and includes both the presence and absence of marital status, which includes being in a domestic relationship or a registered relationship.

The other question is whether the discrimination is justified. Baroness Hale, along with some of the other Lords, raised her eyebrows at the couple’s decision not to marry:

It is therefore appropriate to look with deep suspicion at the reasons why a couple who wish to adopt are unwilling to marry one another. These are not the olden days when the husband and wife were one person in law and that person was the husband. A desire to reject legal patriarchy is no longer a rational reason to reject marriage. It is not expensive to get married. Marriage should not be confused with the wedding. The only rational reason to reject the legal consequences of marriage is the desire to avoid the financial responsibilities towards one another which it imposes on both husband and wife. Why should any couple who wish to take advantage of the law in order to become the legal parents of a child be anxious to avoid those responsibilities which could become so important to the child’s welfare if things went wrong in the future?

Man, what is her problem? But, anyway, Hale was willing to accept that the prospective adoptive parents crazy views shouldn’t be taken out on their (unfortunate) prospective adoptive child, who would also be discriminated against by the restriction on adoption to married couples. All the Lords were dubious about the Crown’s argument that marriage serves as a good proxy for testing the long-lastingness of a relationship. Putting aside some factual doubts about this – not that the Lords seemed to have those – they were unconvinced by the need to have any proxy at all, given that entitlement to apply to adopt was just the first step in a lengthy vetting process that looks to the best interests of children.

Instead, the big difficulty the Lords faced was the political sensitivity of the issue of adoption. They were all well aware of this, as the change in English law five years ago to allow unmarried couples (including, gulp, gays) to adopt was a painful process where the relevant provisions changed as the bill shuttled back and forth between the houses of parliament. It was pretty obvious that a similar change would not go down all that well in Northern Ireland. This issue of political sensitivity – who makes the call? – broke down to three sub-issues:

First, is it the House of Lords who makes the call or the European Court of Human Rights? This was important, because the ECtHR had refused, in a French case from 2002, to rule that a bar on homosexual adoption was incompatible with the Convention. Instead, the ECtHR said, this was a matter that was within the ‘margin of appreciation’ of the member states, a code for political issues that turn on local cultural and institutional issues that the ECtHR isn’t prepared to delve into. Does this mean that the House of Lords should similarly duck the issue? No:

As Lord Bingham of Cornhill observed in R (Ullah) v Special Adjudicator [2004] 2 AC 323… the duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: “no more, but certainly no less.” Not, it should be noted, “certainly no more”. The Strasbourg jurisprudence is not to be treated as a straightjacket from which there is no escape.

Some of the Lords took comfort in their view that, in light of a much more recent ECtHR adoption decision, it could be predicted that the ECtHR would most likely reverse its earlier view. Well, maybe.

Second, is the call for the UK as a whole or just for Northern Ireland, with its special sensitivites (and low divorce rate?) The Lords were unanimous in rejecting the view that human rights apply differently in Northern Ireland:

I accept that there are differences between the cultural traditions of Northern Ireland and of Great Britain which should be taken into account in deciding whether this difference in treatment can be justified. On all the conventional measures, such as the rates of marriage, divorce, cohabitation and birth outside marriage, adherence to traditional family values is more widespread in Northern Ireland than in the rest of the United Kingdom, as is religious belief. But the legal traditions are the same as those in England and Wales. There is no special constitutional status afforded to marriage as there is in the Republic of Ireland. The sort of considerations which might lead Strasbourg to accord them a margin of appreciation on this matter do not apply.

Third, is the call for the courts or for parliament? This is the trickiest question. The majority ruled that questions of discrimination are for the courts:

It is, of course, now well settled that the best guide as to whether the courts should deal with the issue is whether it lies within the field of social or economic policy on the one hand or of the constitutional responsibility which resides especially with them on the other: see, for example, R (Pro Life Alliance) v British Broadcasting Corporation [2003] UKHL 23; [2004] 1 AC 185, para 136, per Lord Walker of Gestingthorpe. The fact that the issue is a political issue too adds weight to the argument that, because it lies in the area of social policy, it is best left to the judgment of the legislature. But the reason why I differ from the Court of Appeal’s approach is that it lies in the latter area as well. Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests.

So, the majority ruled that the Northern Ireland Order was incompatible with the ECtHR. Lord Walker dissented citing:

….the amount of work (involving subordinate legislation and departmental guidance) which would be necessary to give full effect to the legislative change. That is one of the reasons why it is likely to take some time. If instead your Lordships make the order which Lord Hoffmann proposes, judges, lawyers, officials and agencies would be faced with a very abrupt change in the law. No doubt they would all do their best to cope with that new situation but I suspect that there would be many practical difficulties.

For my part I would therefore dismiss this appeal. But I would do so with a warning that if within two or three years a clear consensus on this point emerges within the Council of Europe and in the jurisprudence of the Strasbourg Court, and if the Northern Ireland Assembly does not legislate in line with that consensus, the issue would most probably have to be reconsidered by the new Supreme Court of the United Kingdom, and the outcome would probably be different.

So, not a very bitter dissent! And, perhaps, the first judicial reference – and indeed prejudgment – concerning the coming replacement for the House of Lords.

All up, some thoughtful analysis by all the Lords – even Lord Hoffman, who may just have been having a bad day in R v G – although nothing that really provides strong guidance for future decisions that raise similar but not identical dilemmas. The UKHRA academics will be picking over this decision for years. As will the Victorian government currently mulling over the VLRC’s adoption recommendations (and, presumably, the issue of Charter compatibility.) Like I said, it’s been a big week.

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