Case: Burden v. the United Kingdom
Judgement date: 29 April 2008 (Grand Chamber)
Topic: Older people and the European Convention on Human Rights
Aspect: Prohibition of discrimination (Article 14 of the Convention) and General prohibition of discrimination (Article 1 of Protocol No. 12 to the Convention)

Summary of the facts:
The applicants, both in their eighties, were unmarried sisters who had lived together all their lives, for the last 30 years in a house built on land they had inherited from their parents. Each sister had made a will leaving all her property to the other sister. The applicants complained that, when one of them died, the survivor would face a heavy inheritance tax bill, unlike the survivor of a marriage or a civil partnership.

Summary of the Court's findings:
The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that the applicants, as co-habiting sisters, could not be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. The Court observed in particular that, just as there can be no analogy between married and Civil Partnership Act couples, on the one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand, the absence of such a legally binding agreement between the applicants rendered their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view was unaffected by the fact that member States had adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and had similarly adopted different policies as regards the grant of inheritance-tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
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).

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW
A. Inheritance Tax Act 1984
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).
B. The Civil Partnership Act 2004
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.”
C. The Human Rights Act 1998
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.
III. RELEVANT COMPARATIVE LAW AND MATERIAL
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.
THE LAW
27. The applicants complained under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that, when one of them died, the survivor would face a significant liability to inheritance tax, which would not be faced by the survivor of a marriage or a civil partnership.
Article 1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS
28. The Government contested the admissibility of the application on a number of grounds under Articles 34 and 35 § 1 of the Convention.
Article 34 provides:
“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ... ”
Article 35 § 1 states:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
A. The applicants ’ victim status
1. The Chamber ’ s conclusions
29. The Chamber found, unanimously, that, given the applicants ’ advanced age and the very high probability that one would be liable to pay inheritance tax upon the death of the other, they could claim to be directly affected by the impugned law.
2. The parties ’ submissions
( a ) The Government
30. The Government submitted that the Chamber ’ s reasoning did not support its conclusion. Neither applicant had yet been required to pay inheritance tax and at least one of them would definitely never have to pay it, and furthermore, since it was not inevitable that one would predecease the other, it was a matter of speculation whether either would ever suffer any loss. The applicants could not, therefore, claim to be “victims” of any violation, and their complaint represented a challenge to the tax regime in abstracto, which the Court could not entertain.
31. The legal test for “victim status” was very clear from the case-law: the word “victim” denotes a person who is directly affected by the act or omission in issue (see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). The present case was on that ground distinguishable from Marckx v. Belgium ( 13 June 1979, Series A no. 31 ), where the applicants had been complaining about certain provisions of Belgian law that applied automatically to the illegitimate child and her mother, and Inze v. Austria ( 28 October 1987, Series A no. 126 ), where the complaint concerned rights of inheritance where the parent had already died. In contrast, the requirement to pay inheritance tax did not apply automatically. The applicants were not so affected by the risk of a future liability to tax as to bring them into a comparable position to the applicants in Campbell and Cosans v. the United Kingdom ( 25 February 1982, Series A no. 48 ), where the Court found that a threat of inhuman and degrading punishment could in itself breach Article 3 of the Convention, or Norris v. Ireland ( 26 October 1988, Series A no. 142 ), where the existence of criminal sanctions for homosexual acts must necessarily have affected the applicant ’ s daily conduct and private life.
( b ) The applicants
32. The applicants agreed with the Chamber ’ s unanimous finding that they could properly claim to be victims. It was virtually certain that one would predecease the other, and similarly certain that the value of the deceased ’ s estate would exceed the nil rate threshold for inheritance tax and that the survivor would face a significant liability to inheritance tax which would not be faced by the survivor of a marriage or civil partnership (see paragraph 15 above). Thus, as in Marckx (cited above) or Johnston and Others v. Ireland ( 18 December 1986, Series A no. 112 ), both of which concerned complaints about the effect of illegitimacy on succession rights under domestic law, the applicants ran a very high risk of a violation of their Convention rights. It was, moreover, clear from the Court ’ s case-law (see, for example, Campbell and Cosans, cited above ) that the “mere threat” of conduct prohibited by the Convention might constitute the person at threat a victim, provided the threat was sufficiently real and immediate. Here the threat was very real; even before either had died, the legislation had an impact on them, as it affected their choices about disposing of their property. They had “an awful fear” hanging over them that the house would have to be sold to pay the tax, and they should not have to wait until one of them died before being able to seek the protection of the Convention.
3. The Grand Chamber ’ s assessment
33. The Court notes that, in order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Ireland v. the United Kingdom, 18 January 1978, §§ 239- 40, Series A, no. 25; Eckle, cited above; and Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28). The Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention ( see Norris, cited above, § 31).
34. It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risk being prosecuted (see Norris, cited above, § 31, and Bowman v. the United Kingdom, 19 February 1998, Reports of Judgments and Decisions 1998-I) or if he is a member of a class of people who risk being directly affected by the legislation ( see Johnston and Others, cited above, § 42, and Open Door and Dublin Well Woman v. Ireland, 29 October 1992, Series A no. 246-A). Thus, in the Marckx case, cited above, the applicants, a single mother and her five-year old “illegitimate” daughter, were found to be directly affected by, and thus victims of, legislation which would, inter alia, limit the child ’ s right to inherit property from her mother upon the mother ’ s eventual death, since the law automatically applied to all children born out of wedlock. In contrast, in Willis v. the United Kingdom ( no. 36042/97, ECHR 2002-IV ), the risk to the applicant of being refused a widow ’ s pension on grounds of sex at a future date was found to be hypothetical, since it was not certain that the applicant would otherwise fulfil the statutory conditions for the payment of the benefit at the date when a woman in his position would become entitled.
35. In the present case, the Grand Chamber agrees with the Chamber that, given the applicants ’ age, the wills they have made and the value of the property each owns, the applicants have established that there is a real risk that, in the not too distant future, one of them will be required to pay substantial inheritance tax on the property inherited from her sister. In these circumstances, the applicants are directly affected by the legislation and can claim to be victims of the alleged discriminatory treatment.
B. Domestic remedies
1. The Chamber ’ s conclusions
36. The Chamber ’ s findings as regards exhaustion of domestic remedies were as follows ( paragraphs 35-40):
“The Court is very much aware of the subsidiary nature of its role and that the object and purpose underlying the Convention, as set out in Article 1 – that rights and freedoms should be secured by the Contracting State within its jurisdiction – would be undermined, along with its own capacity to function, if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress (see B. and L. [ v. the United Kingdom ( dec. ), no. 36536/02, 29 June 2004 ] ). The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention thus obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness ( see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996-IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports 1996 ‑ VI).
The Government argue that the remedy under the Human Rights Act allowing an applicant to seek a declaration from a domestic court that legislation is incompatible with the Convention is sufficiently certain and effective for the purposes of Article 35 § 1. Such a declaration creates a discretionary power in the relevant government minister to take steps to amend the offending provision, either by a remedial order or by introducing a bill in Parliament.
The Court found in Hobbs [ v. the United Kingdom ( dec. ), no. 63684/00, 18 June 2002 ] that this remedy was not sufficiently effective, essentially for two reasons: first, because a declaration was not binding on the parties to the proceedings in which it was made; and, secondly, because a declaration provided the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. Moreover, the minister concerned could exercise that power only if he considered that there were ‘ compelling reasons ’ for doing so.
The Court considers that the instant case is distinguishable from Hobbs, where the applicant had already suffered financial loss as a result of the discrimination about which he complained but could not have obtained monetary compensation through the grant of a declaration of incompatibility. It is closer to B. and L. v. the United Kingdom, where there had been no financial loss, although those applicants had already been prevented by the impugned legislation from marrying each other. In the present case, as in B. and L. v. the United Kingdom, it is arguable that, had a declaration of incompatibility been sought and made, the applicants might have been able to benefit from a future change in the law.
However, it remains the case that there is no legal obligation on the minister to amend a legislative provision which has been found by a court to be incompatible with the Convention. The Court notes that, according to the information provided by the Government, by August 2006 such amendments had occurred in ten out of the thirteen cases where a declaration had been finally issued by the courts, and in the remaining three, reforms were pending or under consideration ... It is possible that at some future date evidence of a long-standing and established practice of ministers giving effect to the courts ’ declarations of incompatibility might be sufficient to persuade the Court of the effectiveness of the procedure. At the present time, however, there is insufficient material on which to base such a finding.
The Court does not consider that these applicants could have been expected to have exhausted, before bringing their application to Strasbourg, a remedy which is dependent on the discretion of the executive and which the Court has previously found to be ineffective on that ground. It therefore rejects the Government ’ s second objection to admissibility.”
2. The parties ’ submissions
( a ) The Government
37. The Government referred to the Court ’ s case-law to the effect that it is incumbent on an applicant to pursue a domestic remedy if it is “effective and capable of providing redress for the complaint” ( see Hobbs v. the United Kingdom ( dec. ), no. 63684/00, 18 June 2002). In the present case, since neither applicant had suffered any liability for inheritance tax, the most that the Court could award, in the event that it found in favour of the applicants, would be a declaration that the Inheritance Tax Act represented a violation of their Convention rights. Assuming that the claim was well founded on the merits, this was also the relief that the High Court in the United Kingdom would have awarded under section 4 of the Human Rights Act. If a declaration by this Court would constitute just satisfaction for the purposes of Article 41 of the Convention, the Government submitted that a declaration of incompatibility by the High Court must necessarily be regarded as an available and effective domestic remedy for the purposes of Article 35.
38. The Government referred to the information set out in paragraph 24 above and emphasised that there was not a single case where it had refused to remedy a declaration of incompatibility. While as a matter of pure law it was true, as the Court had found in Hobbs, that such a declaration was not binding on the parties and gave rise to a power for the minister, rather than a duty, to amend the offending legislation, this was to ignore the practical reality that a declaration of incompatibility was highly likely to lead to legislative amendment.
( b ) The applicants
39. The applicants referred to the Commission ’ s case-law to the effect that the remedies an applicant is required to make use of must not only be effective but also independent of discretionary action by the authorities ( see for example, Montion v. France, no. 11192/84, Commission decision of 14 May 1987, Decisions and Reports (DR) 52, p. 2 32, and G. v. Belgium, no. 12604/86, Commission decision of 10 July 1991, DR 70, p. 1 31 ). They argued that a declaration of incompatibility could not be regarded as an effective remedy because the procedures to change the law could not be initiated by those who had obtained a declaration or enforced by any court or organ of State. The Court had accepted a similar argument in Hobbs and also in Dodds v. the United Kingdom ( ( dec. ), no. 59314/00, 8 April 2003 ), Walker v. the United Kingdom ( ( dec. ), no. 37212/02, 16 March 2004 ), Pearson v. the United Kingdom ( ( dec. ), no. 8374/03, 27 April 2004 ) and, lastly, B. and L. v. the United Kingdom ( ( dec. ), no. 36536/02, 29 June 2004 ), where the Government had made submissions almost identical to those in the present case.
3. The Grand Chamber ’ s assessment
40. The Grand Chamber notes that the Human Rights Act places no legal obligation on the executive or the legislature to amend the law following a declaration of incompatibility and that, primarily for this reason, the Court has held on a number of previous occasions that such a declaration cannot be regarded as an effective remedy within the meaning of Article 35 § 1 (see the decisions in Hobbs, Dodds, Walker, Pearson and B. and L. v. the United Kingdom, all cited above, and also Upton v. the United Kingdom ( dec. ), no. 29800/04, 11 April 2006). Moreover, in cases such as Hobbs, Dodds, Walker and Pearson, where the applicant claims to have suffered loss or damage as a result of the breach of his Convention rights, a declaration of incompatibility has been held not to provide an effective remedy because it is not binding on the parties to the proceedings in which it is made and cannot form the basis of an award of monetary compensation.
41. The Grand Chamber is prepared to accept the Government ’ s argument that the present case can be distinguished from Hobbs, given that neither applicant complains of having already suffered pecuniary loss as a result of the alleged violation of the Convention. It has carefully examined the material provided to it by the Government concerning legislative reform in response to the making of a declaration of incompatibility, and notes with satisfaction that in all the cases where declarations of incompatibility have to date become final, steps have been taken to amend the offending legislative provision (see paragraph 24 above). However, given that there have to date been a relatively small number of such declarations that have become final, it agrees with the Chamber that it would be premature to hold that the procedure under section 4 of the Human Rights Act provides an effective remedy to individuals complaining about domestic legislation.
42. Nonetheless, the Grand Chamber is mindful that the principle that an applicant must first make use of the remedies provided by the national legal system before applying to an international court is an important aspect of the machinery of protection established by the Convention (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV). The European Court of Human Rights is intended to be subsidiary to the national systems safeguarding human rights ( ibid., §§ 65-66) and it is appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries.
43. The Grand Chamber agrees with the Chamber that it cannot be excluded that at some time in the future the practice of giving effect to the national courts ’ declarations of incompatibility by amendment of the legislation is so certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation. In those circumstances, except where an effective remedy necessitated the award of damages in respect of past loss or damage caused by the alleged violation of the Convention, applicants would be required first to exhaust this remedy before making an application to the Court.
44. This is not yet the case, however, and the Grand Chamber therefore rejects the Government ’ s objection on grounds of non-exhaustion of domestic remedies.
C. Conclusion
45. The Court accordingly rejects the Government ’ s preliminary objections.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
A. The Chamber ’ s conclusions
46. The Chamber rejected the Government ’ s argument, relying, inter alia, on the judgment in Marckx (cited above), that Article 1 of Protocol No. 1 was inapplicable since there was no right under the Article to acquire possessions. The Chamber noted that the applicants complained not, as in the Marckx case, that they would be prevented from acquiring property but that the survivor would be required to pay tax on existing property which they jointly owned, an outcome which the Chamber had held to be highly probable. Since the duty to pay tax on existing property fell within the scope of Article 1 of Protocol No. 1, Article 14 was applicable.
47. The Chamber left open the question whether the applicants could claim to be in an analogous position to a married or Civil Partnership Act couple and found that the difference in treatment was not inconsistent with Article 14 of the Convention, for the following reasons ( paragraphs 59-61):
“In this regard, the Court recalls its finding in Shackell [ v. the United Kingdom ( dec. ), no. 45851/99, 27 April 2000] that the difference of treatment for the purposes of the grant of social security benefits, between an unmarried applicant who had a long-term relationship with the deceased, and a widow in the same situation, was justified, marriage remaining an institution that was widely accepted as conferring a particular status on those who entered it. The Court decided in Shackell, therefore, that the promotion of marriage by way of the grant of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the respondent State. In the present case, it accepts the Government ’ s submission that the inheritance - tax exemption for married and civil partnership couples likewise pursues a legitimate aim, namely to promote stable, committed heterosexual and homosexual relationships by providing the survivor with a measure of financial security after the death of the spouse or partner. The Convention explicitly protects the right to marry in Article 12, and the Court has held on many occasions that sexual orientation is a concept covered by Article 14 and that differences based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX and the cases cited therein). The State cannot be criticised for pursuing, through its taxation system, policies designed to promote marriage; nor can it be criticised for making available the fiscal advantages attendant on marriage to committed homosexual couples.
In assessing whether the means used are proportionate to the aim pursued, and in particular whether it is objectively and reasonably justifiable to deny cohabiting siblings the inheritance - tax exemption which is allowed to survivors of marriages and civil partnerships, the Court is mindful both of the legitimacy of the social policy aims underlying the exemption, and the wide margin of appreciation that applies in this field ... Any system of taxation, to be workable, has to use broad categorisations to distinguish between different groups of tax payers (see Lindsay [ v. the United Kingdom, no. 11089/84, Commission decision of 11 November 1986, Decisions and Reports 49, p. 181] ). The implementation of any such scheme must, inevitably, create marginal situations and individual cases of apparent hardship or injustice, and it is primarily for the State to decide how best to strike the balance between raising revenue and pursuing social objectives. The legislature could have granted the inheritance - tax concessions on a different basis: in particular, it could have abandoned the concept of marriage or civil partnership as the determinative factor and extended the concession to siblings or other family members who lived together, and/or based the concession on such criteria as the period of cohabitation, the closeness of the blood relationship, the age of the parties or the like. However, the central question under the Convention is not whether different criteria could have been chosen for the grant of an inheritance - tax exemption, but whether the scheme actually chosen by the legislature, to treat differently for tax purposes those who were married or who were parties to a civil partnership from other persons living together, even in a long-term settled relationship, exceeded any acceptable margin of appreciation.
In the circumstances of the case, the Court finds that the United Kingdom cannot be said to have exceeded the wide margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance - tax exemptions was reasonably and objectively justified for the purposes of Article 14 of the Convention. There has accordingly been no violation of the Article, read in conjunction with Article 1 of Protocol No. 1, in the present case.”
B. The parties ’ submissions
1. The Government
48. The Government emphasised that there was no right under Article 1 of Protocol No. 1 to acquire possessions; in the Court ’ s case-law on domestic inheritance laws, it had consistently held that, before the relevant death occurred, the presumptive heir had no property rights and that his or her hope of inheriting in the event of death could not therefore amount to a “possession” (see Marckx, cited above, § 50; Inze, cited above, § 38; and Mazurek v. France, no. 34406/9 7, §§ 42-43, ECHR 2000-II). Since each applicant was still alive and her complaint, as surviving sister, concerned the potential future impact of domestic law on their power to inherit, Article 1 of Protocol No. 1 did not apply, and nor therefore did Article 14. The complaint made by each sister as the prospective first-to-die was also outside the ambit of Article 1 of Protocol No. 1 because there was no restriction under domestic law on the applicants ’ ability to dispose of their property, only a potential liability to tax arising after death, when the deceased would no longer be in a position to enjoy her former possessions.
49. In the alternative, if the Court were to find that the complaint fell within the ambit of Article 1 of Protocol No. 1, the Government denied that domestic law gave rise to any discrimination contrary to Article 14.
Firstly, the applicants could not claim to be in an analogous situation to a couple created by marriage or civil partnership. The very essence of their relationship was different, because a married or Civil Partnership Act couple chose to become connected by a formal relationship, recognised by law, with a number of legal consequences; whereas for sisters, the relationship was an accident of birth. Secondly, the relationship between siblings was indissoluble, whereas that between married couples and civil partners might be broken. Thirdly, a married couple and civil partners made a financial commitment by entering into a formal relationship recognised by law and, if separated, the court could divide their property and order financial provision to be made by one partner to the other. No such financial commitment arose by virtue of the relationship between siblings.
The special legal status of parties to a marriage had been recognised by the Commission in Lindsay v. the United Kingdom ( no. 11089/84, Commission decision of 11 November 1986, DR 49, p. 181 ), and by the Court in Shackell v. the United Kingdom ( ( dec. ), no. 45851/99, 27 April 2000 ).
50. The Government accepted that, if the applicants could be described as in an analogous position to a couple, there was a difference in treatment as regards exemption from inheritance tax. However, this difference in treatment did not exceed the wide margin of appreciation enjoyed by the State, both in the field of taxation and when it came to financial measures designed to promote marriage (see Lindsay and Shackell, cited above ).
The policy underlying the inheritance - tax concession given to married couples was to provide the survivor with a measure of financial security, and thus promote marriage. 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 the inheritance - tax concession for civil partners served the same legitimate aim as it did in relation to married couples. Given the development of society ’ s attitudes, the same arguments justified the promotion of stable, committed same-sex relationships. That objective would not be served by extending similar benefits to unmarried members of an existing family, such as siblings, whose relationship was already established by their consanguinity and recognised by law. The difference in treatment thus pursued a legitimate aim.
51. The difference in treatment was, moreover, proportionate, given that the applicants, as siblings, had not undertaken any of the burdens and obligations created by a legally recognised marriage or civil partnership. If the Government were to consider extending the inheritance - tax concession to siblings, there would be no obvious reason not to extend it also to other cohabiting family members. Such a change would have considerable financial implications, given that the annual income from inheritance tax was approximately 2.8 billion pounds sterling.
2. The applicants
52. The applicants argued that if, as they had previously contended, they could claim to be victims of discrimination, the fact that neither had yet died could not provide a separate and substantive defence. Unlike the applicants in Marckx, the present applicants were not complaining about a provision of the English law of inheritance and claim that the principle that the Convention does not guarantee the right to acquire possessions on intestacy or through voluntary disposition was irrelevant. In circumstances where it was effectively inevitable that there would be significant tax to pay by the surviving sister, the facts fell within the scope of Article 1 of Protocol No. 1, and Article 14 was thus also applicable.
53. The applicants could properly be regarded as being in a similar situation to a married or same-sex Civil Partnership Act couple. While it was true, as the Government had asserted, that many siblings were connected by nothing more than their common parentage, this was far from the case with the present applicants, who had chosen to live together in a loving, committed and stable relationship for several decades, sharing their only home, to the exclusion of other partners. Their actions in so doing were just as much an expression of their respective self-determination and personal development as would have been the case had they been joined by marriage or a civil partnership. The powers of the domestic courts to make property orders upon the breakdown of a marriage or civil partnership did not entail that the applicants were not in an analogous situation to such couples as regards inheritance tax. Moreover, the very reason that the applicants were not subject by law to the same corpus of legal rights and obligations as other couples was that they were prevented, on grounds of consanguinity, from entering into a civil partnership. They had not raised a general complaint about their preclusion from entering into a civil partnership, because their concern was focused upon inheritance - tax discrimination and they would have entered into a civil partnership had that route been open to them. It was circular for the Government to hold against the applicants the very fact that they cannot enter into a civil partnership.
54. Given that, as the Government asserted, the purpose of the inheritance - tax exemption for married and civil partnership couples was the promotion of stable and committed relationships, the denial of an exemption to cohabiting adult siblings served no legitimate aim. The mere fact of being sisters did not entail a stable, committed relationship, and only a small minority of adult siblings were likely to share the type of relationship enjoyed by the applicants, involving prolonged mutual support, commitment and cohabitation.
55. The applicants agreed with the Government that there was no obvious reason why, if the exception were granted to siblings, it should not also be extended to other family members who cohabit, but argued that this did not support a conclusion that the difference in treatment bore any relationship of proportionality to any legitimate aim. Such an exemption would, in fact, serve the policy interest invoked by the Government, namely the promotion of stable, committed family relationships among adults. While the applicants accepted that the Court had no jurisdiction to dictate to the Government how best to remedy the discrimination, the amendment to the Civil Partnership Bill passed by the House of Lords (see paragraph 19 above) showed that it would be possible to construct a statutory scheme whereby two siblings or other close relations who had cohabited for a fixed number of years and chosen not to enter into a marriage or civil partnership could obtain certain fiscal rights or advantages. The Government ’ s reliance on the margin of appreciation was misplaced in the light of the recognition given to the injustice faced by those in the applicants ’ position when the Civil Partnership Act was passing through Parliament (ibid.). The applicants pointed out that the Government had been unable to provide an estimate of the loss of revenue which would flow from an inheritance - tax exemption along the lines proposed in the House of Lords. They could not estimate the cost either, but pointed out that the lost revenue would have to be offset by the potential gains, for example, those flowing from an increased tendency, encouraged by the exemption, of close relations to care for disabled or elderly relatives, thus avoiding the need for State-funded care.
C. The third parties ’ submissions
1. The Government of Belgium
56. According to the Belgian Government, a State was entitled to pursue, through its taxation system, policies designed to promote marriage and to make available the fiscal advantages attendant on marriage to committed homosexual couples. Such policies pursued the common goal of the protection of the form of family life which, in the view of national legislatures, provided the best prospect of stability.
2. The Government of Ireland
57. The Irish Government submitted that the applicants had failed to establish discrimination contrary to Article 14, since their entire complaint hinged upon the fundamentally erroneous assumption that they were in an analogous position to a married couple and/or a Civil Partnership Act couple. The applicants ’ submissions failed to advert to the significant legal obligations inherent in marriage/civil partnership. There was no single, homogeneous comparator between the applicants and the above types of couple; indeed, it was clear from the applicants ’ arguments that their position was analogous, not to married or Civil Partnership Act couples, but rather to any persons in an established, mutually supportive, cohabiting relationship. It would be truly extraordinary if the enactment of legislation conferring rights upon same-sex couples who chose to register their relationship could have the effect of requiring the State to extend the entitlements thereby conferred to a potentially infinite class of persons in cohabiting relationships.
D. The Grand Chamber ’ s assessment
58. The Grand Chamber notes that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005 -X ).
59. Taxation is in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1, since it deprives the person concerned of a possession, namely the amount of money which must be paid. While the interference is generally justified under the second paragraph of this Article, which expressly provides for an exception as regards the payment of taxes or other contributions, the issue is nonetheless within the Court ’ s control, since the correct application of Article 1 of Protocol No. 1 is subject to its supervision (see, for example, Orion- Břeclav, S. R. O. v. the Czech Republic ( dec. ), no. 43783/98, 13 January 2004). Since the applicants ’ complaint concerns the requirement for the survivor to pay tax on property inherited from the first to die, the Grand Chamber considers that the complaint falls within the scope of Article 1 of Protocol No. 1 and that Article 14 is thus applicable.
60. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 -IV ). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy ( see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51-52, ECHR 2006 - VI ).
61. The applicants claim to be in a relevantly similar or analogous position to cohabiting married and Civil Partnership Act couples for the purposes of inheritance tax. The Government, however, argue that there is no true analogy because the applicants are connected by birth rather than by a decision to enter into a formal relationship recognised by law.
62. The Grand Chamber commences by remarking that the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom ’ s Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members (see paragraph 17 above and, generally, B. and L. v. the United Kingdom, cited above). The fact that the applicants have chosen to live together all their adult lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the two types of relationship.
63. Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences ( see B. and L. v. the United Kingdom, cited above, § 34). In Shackell (cited above), the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors ’ benefits, since “ marriage remains an institution which is widely accepted as conferring a particular status on those who enter it ”. The Grand Chamber considers that this view still holds true.
64. Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple also has the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage (see paragraphs 16-18 above).
65. As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on the one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, cited above), the absence of such a legally binding agreement between the applicants renders their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view is unaffected by the fact that, as noted in paragraph 26 above, member States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance - tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.
66. In conclusion, therefore, the Grand Chamber considers that the applicants, as cohabiting sisters, cannot be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.