30 August 2018 marked the end of a long journey for Siobhan McLaughlin: on 28 January 2014 her partner of 23 years John Adams passed away and she took on sole responsibility for their four children. Since then, she has fought to be granted financial assistance from the State, which is reserved for individuals who suffered the death of their spouse or civil partner; in Ms McLaughlin’s case however, she was neither married nor (could have been) civil-partnered with Mr Adams. Finally before the Supreme Court, a majority found in her favour and declared that the non-provision of Widowed Parents’ Allowance (“WPA”) to unmarried and non-civil-partnered survivor parents was incompatible with the rights under Article 8 (right to respect for private and family life) and Article 1 of Protocol I (“A1P1”) (right to peaceful enjoyment of one’s possessions) of the European Convention on Human Rights (“ECHR”) when read with the non-discrimination guarantees under Article 14 of the ECHR. The ratio in Re McLaughin [2018] UKSC 48 however raises important considerations which go beyond survivor benefits – ultimately to the nature of the relationship between domestic courts and the Strasbourg Court (“ECtHR”).

The ratio in McLaughlin

The majority ruling in McLaughlin, articulated by Lady Hale PSC and joined in concurrence by Lord Mance JSC looked to the purpose of the WPA as financial assistance to enable a survivor spouse or civil partner to look after the children of the relationship (McLaughlin at [27]), thereby engaging both the respect for family life under Article 8 of the ECHR and respect for property under A1P1 of the ECHR (McLaughin at [22] – [23]). Satisfied thus that the provision of the WPA fell “within the ambit” of both rights, the court went on to consider whether, in refusing Ms McLaughlin the WPA, the State had discriminated against her in breach of Article 14 of the ECHR. It is here that the majority and the dissenting opinion of Lord Hodge JSC provide insight into the current nature of the relationship between UK courts and the ECtHR.

That Ms McLaughlin had been treated differently on the basis of her unmarried status was uncontroversial (McLaughlin at [31] per Lady Hale PSC and [72] per Lord Hodge JSC); the key question was whether this difference in treatment had been lawful and in accordance with Article 14 of the ECHR. For the majority, Lady Hale held that, as the focus of the WPA was to provide for any children for whom the surviving parent was responsible, the marital or civil-partnership status of the parents was immaterial: “It makes no difference to the children” (McLaughlin at [27]). The State’s position that the difference in treatment was reflective of the legitimate aim of privileging the status of marriage and civil partnership nevertheless fell short of the question of whether denial of the WPA to Ms McLaughlin was a proportionate way of achieving this aim. Lady Hale answered the question with a resounding “no” (McLaughlin at [39]). Lord Hodge however considered, on the basis of ECtHR decisions, chief among which was Shackell v United Kingdom (Application no. 45851/99), that unmarried and married persons were not analogous when it came to WPA, for “it is not related to the status of the children”, but rather on the marital status of the survivor (Shackell, at [2]). Whether the ECtHR had adequately considered the purpose of the WPA in respect of its findings in Shackell was a matter which split not only the Court in McLaughlin (the majority denied the adequacy of this consideration at [28] while Lord Hodge grounded part of his dissent on Shackell at [62] – [63]), but also the majority itself (Lord Mance JSC, while concurring with Lady Hale, nevertheless held that the ECtHR had examined the purpose of the WPA at [48]). Lord Hodge also found that, in the event he had considered that Ms McLaughlin as an unmarried survivor was analogous to married or civil-partnered survivors, the State was nonetheless entitled to promote marriage and civil partnership over cohabitee survivors as the WPA is directed at the survivor, and only indirectly engaged the survivor’s children (McLaughlin, at [83]).

What is significant in the majority ratio is that, without an explicit acknowledgement to this effect, the majority effectively moved beyond the ECtHR to find (1) that the central focus of the WPA was the welfare of the survivor’s children, as a result of which (2) cohabitee survivors were analogous to married and civil-partnered survivors for the purposes of the WPA. While Lord Mance alluded to the majority having to ignore or not follow Shackell at [49] of McLaughlin, this departure was marked with none of the usual introspection which it has entailed in the Court’s previous cases.

The mirror cracked?

In R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, Lord Slynn of Hadley at [26] first articulated the principle that UK courts should follow clear and constant jurisprudence of the ECtHR unless there is some “special circumstance” which demands that such jurisprudence not be followed. Subsequently approved by Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26, the principle has become known as the “Ullah” or “mirror” principle. The departure from this principle, though far from routine, has nevertheless been effected in a multitude of cases before the House of Lords and the Supreme Court, as Lord Kerr of Tonaghmore JSC in the latter observed recently in Commissioner of Police of the Metropolis v DSD [2018] UKSC 11. In fact, in DSD, Lord Kerr held as “inescapably correct” the notion that there had been a retreat from the mirror principle (DSD, at [78]). Nevertheless, his Lordship did not look or move beyond the ECtHR in that case.

In Re P [2008] UKHL 38, Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, and in DSD itself, whenever the Court was confronted with the possibility that it may be departing from the ECtHR by setting a standard of protection of ECHR rights higher than the ECtHR itself, it has gone to great pains to demonstrate that such a departure is both necessary and jurisprudentially consistent. In McLaughlin, one finds no detailed reasoning, indeed not even a nod, to the mirror principle or the acknowledgement that the Court was in effect departing from the principle for (entirely cogent) reasons. This is perhaps indicative of a judicial shift in the attitude to the nature of the relationship between the domestic courts and the ECtHR. While section 2(1) of the Human Rights Act 1998 (“HRA”) obliges courts to “take into account” ECtHR judgments, the mirror principle is a rule of construction birthed by the courts in order to implement this statutory duty, and can of course be superseded by a new rule of construction in order to better implement this duty. It is entirely possible, for example, for courts to consider ECtHR judgments to be the bedrock of ECHR applicability, on which to lay the soil of ECHR protections which are domestically higher and unique to the UK (a possibility already envisioned by Article 53 of the ECHR). Courts can thus take into account ECtHR judgments, and consider whether the facts of a case warrant higher domestic protection. This would require a positive enquiry from the courts (what can be the basis for effective protection) rather than a negative one (how far has the ECtHR gone in a particular matter). This change is critical when applied to one of the most heavily-debated matters in Northern Ireland today.

Petitioner X

On 17 August 2017, Mr Justice O’Hara in the High Court in Northern Ireland dismissed an application for judicial review by Petitioner X [2017] NIFam 12 for a declaration that Schedule 2 of the Marriage (Same Sex Couples) Act 2013, which treats same-sex marriages performed in England and Wales as civil partnerships in Northern Ireland, was in breach of the petitioner’s rights under Articles 8, 9 (right to freedom of thought, conscience and religion) and 12 (right to marry) when read with Article 14 of the ECHR (X, at [32]). One of O’Hara J’s main reasons for dismissing the application was the clear line of reasoning by the ECtHR, inter alia in Scalk and Kopf v Austria [2010] ECHR 1996 and Hämäläinen v Finland [2014] ECHR 787 that the denial of marital rights to same-sex couples did not breach any ECHR rights on account of (inter alia) a lack of consensus among the Member States of the ECHR on this issue (X, at [19], [20] and [31]). O’Hara J held moreover that he was bound by the mirror principle to follow the ECtHR and go no further (X, at [31(c)]). Conor McCormick has laid out a detailed examination of the pitfalls of the mirror principle as applied in X, with clear doctrinal reasoning for its suspension in this case. While this case is under appeal, perhaps McLaughlin can encourage the Court of Appeal to tread where the High Court could not.

Conclusion

The dialogue between the UK courts and the ECtHR could undergo a fundamental change if the domestic duty to take ECtHR judgments into account is recast into a different rule of construction. Lord Rodger of Earlsferry had rather caustically observed in Home Secretary v AF (No. 3) [2009] UKHL 28: “Even though we are dealing with rights under a United Kingdom statute (the HRA), in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed” (AF, at [98]). With the possibilities inherent in McLaughlin however, the case may not yet have closed.

Anurag Deb, paralegal at KRW LAW LLP and BPTC student, University of Law

(Suggested citation: A. Deb, ‘Re McLaughlin: Normalising the Departure from Strasbourg?’, U.K. Const. L. Blog (3rd Sept. 2018) (available at https://ukconstitutionallaw.org/))