In allowing the Secretary of State for Work and Pension’s appeal the majority of the House of Lords (4:1) rejected the proposition that even a tenuous link with another provision in the Convention will be sufficient for article 14 to enter into play (paragraph 60).
In the leading speech on behalf of the majority of the House of Lords Lord Walker distinguished article 8 from many other Convention rights which he stated had a “reasonably well-defined ambit (or scope)” (paragraph 61). Following a detailed analysis of article 8 case law, he rejected the Respondent’s submission that the concept of respect for private and family life was wide and multifaceted” and rather concluded that “The ECHR has taken a more nuanced approach, reflecting the unique feature of article 8 …that it is concerned with the failure to accord respect” (paragraphs 82 and 83). He went on to reject the Respondent’s contention that the provisions of the child support formula which treated two members of a same sex relationship as two individuals rather than as a couple came within the ambit of article 8 so as to give rise to a claim under article 14.
The judgment of the House of Lords also gives important guidance on the approach to margin of appreciation in circumstances where parliament is in the course of enacting a legislative solution (Civil Partnership Act 2004) to wide-ranging difference of treatment (namely the prior non-recognition of same sex relationships).
Daniel Kolinsky appeared for the Appellant Secretary of State for Work and Pensions (led by Philip Sales).