CASE OF BURDEN v. THE UNITED KINGDOM
Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 14+P1-1
Anatoly Kovler;András Baka;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Stanislav Pavlovschi
9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. The applicants are unmarried sisters, born on 26 May 1918 and 2 December 1925 respectively. They have lived together, in a stable, committed and mutually supportive relationship, all their lives; for the last thirty-one years in a house built on land inherited from their parents in Wiltshire. 11. The house is owned by the applicants in their joint names. According to an expert valuation dated 12 January 2006, the property was worth 425,000 pounds sterling (GBP), or GBP 550,000 if sold together with the adjoining land. The sisters also jointly own two other properties, worth GBP 325,000 in total. In addition, each sister owns in her sole name shares and other investments worth approximately GBP 150,000. Each has made a will leaving all her property to the other. 12. The applicants submitted that the value of their jointly owned property had increased to the point that each sister’s one-half share was worth significantly more than the current exemption threshold for inheritance tax (see paragraph 13 below). 13. By sections 3, 3A and 4 of the Inheritance Tax Act 1984, inheritance tax is charged at 40% on the value of a person’s property, including his or her share of anything owned jointly, passing on his or her death, and on lifetime transfers made within seven years of death. The charge is subject to a nil rate threshold of GBP 300,000 for transfers between 5 April 2007 and 5 April 2008 (section 98 of the Finance Act 2005). 14. Interest is charged, currently at 4%, on any tax not paid within six months after the end of the month in which the death occurred, no matter what caused the delay in payment. Any inheritance tax payable by a person to whom land is transferred on death may be paid, at the taxpayer’s election, in ten equal yearly instalments, unless the property is sold, in which case outstanding tax and interest must be paid immediately (section 227(1)-(4)). 15. Section 18(1) of the Inheritance Tax Act provides that property passing from the deceased to his or her spouse is exempt from charge. With effect from 5 December 2005 this exemption was extended to a deceased’s “civil partner” (see paragraphs 16-18 below). 16. The purpose of the Civil Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and to confer on them, as far as possible, the same rights and obligations as entailed by marriage. 17. A couple is eligible to form a civil partnership if they are (i) of the same sex; (ii) not already married or in a civil partnership; (iii) over the age of 16; and (iv) not within the prohibited degrees of relationship. 18. A civil partnership is, like marriage, indeterminate in nature and can end only on death, dissolution or annulment. The Civil Partnership Act created a comprehensive range of amendments to existing legislation, covering, inter alia, pensions, tax, social security, inheritance and immigration, intended to create parity between civil partnership and marriage for all purposes except in the very few cases where there was an objective justification for not doing so. The courts have similar powers to control the ownership and use of the civil partners’ property upon dissolution of a civil partnership as upon dissolution of a marriage. 19. When the Civil Partnership Bill was passing through Parliament, an amendment to it was adopted in the House of Lords by 148 votes to 130, which would have had the effect of extending the availability of civil partnership, and the associated inheritance-tax concession, to family members within the “prohibited degrees of relationship”, if (i) they were over 30 years of age; (ii) they had cohabited for at least twelve years; and (iii) they were not already married or in a civil partnership with some other person. The amendment was reversed when the Bill returned to the House of Commons. 20. During the course of the debate in the House of Lords, Lord Alli, a Labour peer, stated: “I have great sympathy with the noble Baroness, Lady O’Caithlin [the Conservative peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times – at Second Reading and in Grand Committee –and I have pushed the government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.” During the same debate, Lord Goodhart, a Liberal Democrat peer, stated: “There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.” During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith, Member of Parliament, Deputy Minister for Women and Equality, stated: “As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill – granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings. We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.” 21. The Human Rights Act 1998 entered into force on 2 October 2000. Section 3(1) provides: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Section 4 of the 1998 Act provides (so far as relevant): “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6) A declaration under this section ... (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” Section 6 provides: “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or (b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...” Section 10 provides: “(1) This section applies if (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies – (i) all persons who may appeal have stated in writing that they do not intend to do so; or (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned; or (b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” 22. The Government submitted that the objective of giving the national courts the power under section 4 had been to provide a formal means for notifying the government and Parliament about a situation in which legislation was found not to comply with the Convention, and to provide a mechanism for speedily correcting the defect. Once a declaration had been made (or once the European Court of Human Rights had found a violation based on a provision of domestic law), there were two alternative avenues for putting right the problem: either primary legislation could be introduced in Parliament, or the minister concerned could exercise his summary power of amendment under section 10 of the Human Rights Act 1998. 23. When the Human Rights Bill passed through the House of Lords on 27 November 1997, the Lord Chancellor explained that: “[W]e expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.” One of the ministers with responsibility for the Human Rights Act explained to the House of Commons on 21 October 1998 that: “Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg Court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.” 24. According to statistics provided by the Government and last updated on 30 July 2007, since the Human Rights Act came into force on 2 October 2000 there had been twenty-four declarations of incompatibility. Of these, six had been overturned on appeal and three remained subject to appeal in whole or in part. Of the fifteen declarations which had become final, three related to provisions that had already been remedied by primary legislation at the time of the declaration; seven had been remedied by subsequent primary legislation; one had been remedied by a remedial order under section 10 of the Act; one was being remedied by primary legislation in the course of being implemented; one was the subject of public consultation; and two (relating to the same issue) would be the subject of remedial measures which the government intended to lay before Parliament in the autumn of 2007. In one case, A v. Secretary of State for the Home Department [2005] 2 AC 68, the House of Lords made a declaration of incompatibility concerning section 23 of the Anti-Terrorism, Crime and Security Act 2001, which gave the Secretary of State power to detain suspected international terrorists in certain circumstances. The government responded immediately by repealing the offending provision by section 16 of the Prevention of Terrorism Act 2005. 25. While in common law systems there has traditionally been freedom of testamentary devolution, in civil law systems the order of succession is generally established by statute or code, with some particularly privileged categories of heirs, normally the spouse and close relatives, being granted automatic rights to a portion of the estate (the so-called reserved shares), which cannot generally be modified by the decedent’s will. The position of each heir depends therefore on the combined effect of family law and tax law. 26. From the information available to the Court, it would appear that some form of civil partnership, with varying effects on matters of inheritance, are available in sixteen member States, namely Andorra, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Spouses and close relatives, including siblings, are granted statutory inheritance rights in virtually all member States. In a majority of member States, siblings are treated less favourably in terms of succession rights than the surviving spouse but more favourably than the surviving civil partner; and only a few member States grant the surviving civil partner inheritance rights equal to those of the surviving spouse. Inheritance tax schemes usually follow the order of succession, although in certain countries, such as France and Germany, the surviving spouse is granted a more favourable tax exemption than any other category of heir.