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Coming up for hearing in the Privy Council on 21 October 2009 is the case of Nadine Rodriguez v The Minister for Housing of the Government of Gibraltar and the Housing Allocation Committee. The Privy Council will decide whether, in relation to the allocation of government housing, a distinction between married couples and unmarried couples with a child in common on the one hand; and unmarried couples on the other hand, is discriminatory; and in particular whether it is discriminatory in relation to a same-sex couple who do not (and cannot) have a child in common and are unable to get married (there is no civil partnership or equivalent in Gibraltar).

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The appellant, Nadine Rodriguez, was granted tenancy of a government flat on 30 September 2005. It was an express condition of the tenancy that she should not allow anyone else to sleep on the premises without the prior written consent of the landlord. The flat became the home of the appellant and her long-term same-sex partner, Ms Muscat. The latter was the breadwinner in the relationship, and the appellant the housekeeper.  In October 2006, the appellant applied for her tenancy to be amended so as to record Ms Muscat as a joint tenant.  The application was refused. The policy behind the refusal was that joint tenancies could be approved in relation to an individual and his or her parent, spouse, adult child or common-law partner with whom he or she had a minor child in common, provided that the prospective joint tenants were living together at the time of the application or allocation.

The appellant claimed that the policy as applied to her and Ms Muscat was illegal because it discriminated against same-sex couples who could not marry (there being no provision for civil partnership in Gibraltar).  Ms Rodriguez argued that the policy thereby breached the provisions of the Gibraltar constitution requiring equal treatment, respect for privacy of the home and for private and family life.  The policy was also said to violate the common law principle of equality. 

These arguments were rejected by the court of first instance, which held that the proper comparator for Ms Rodriguez and Ms Muscat was not a married couple, but an unmarried opposite-sex couple (without a child in common). Since both categories were precluded from joint tenancies, there was between them no discrimination on grounds of sexual orientation.

The Court of Appeal of Gibraltar upheld the decision of the court below by a majority of two to one.  The Court consists of retired English Court of Appeal judges and the majority comprised Sir Paul Kennedy and Sir Murray Stuart-Smith, Sir William Aldous dissented.   A lengthy review of relevant decisions of the European Court of Human Rights led to the conclusion that:

<!–[if !supportLists]–> – marriage is a status which states are entitled to recognise, encourage and protect by giving advantages to those who have entered into it; 

<!–[if !supportLists]–> – the only context in which it has been held that it is inappropriate to make marriage an inflexible requirement is that of adoption, where the best interests of the child are pre-eminent, and must be fully considered on a case-by-case basis (see the recent House of Lords decision in Re G (Adoption: Unmarried Couple) [2008]  3 WLR 76);

<!–[if !supportLists]–> – outside of that context, for example in relation to taxation, or claims to money or property,  the European Courts have repeatedly upheld preferences for those who are married;

<!–[if !supportLists]–> – the appellant’s application for a joint tenancy was analogous to such cases. The adoption of a “bright line” distinction between those who were eligible for joint tenancies and those who were not based on marriage (or a child in common) was a legitimate means of allocating housing stock the supply of which fell significantly short of demand.

A key issue before the Court of Appeal was whether an unmarried opposite sex couple was the appropriate comparator for an unmarried same-sex couple. It was submitted that they were not alike, because the former could marry, but not the latter. Hence the prerequisite to obtaining a joint tenancy was a requirement that the appellant and Ms Muscat could not fulfil, namely marriage. 

It is not clear that the majority in the Gibraltar Court of Appeal really got to grips with this argument, and the implications of Ms Rodriguez and her partner being faced with a conditions that they did not and – because they were a same-sex couple – could not fulfil.  Instead, the majority considered it to be immaterial that the appellant and Ms Muscat could not marry because the policy simply distinguished between those who were married and those who were not (unless the latter had a child in common).

In reaching this conclusion, the Gibraltar Court of Appeal made detailed reference to the judgments of the European Court of Human Rights.  These guide the courts’ consideration of the issues in this case because section 18(8) of the Gibraltar Constitution requires a court or tribunal determining a question in relation to a right or limitation in the chapter dealing with human rights to take into account the decisions of the European Court of Human Rights which are considered by the court in question to be relevant to the proceedings at hand.  In applying this requirement, the Gibraltar courts followed the leading decision of the House of Lords in relation to the equivalent interpretative requirement in the Human Rights Act 1998, s 2 (R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 20; see also M v Secretary of State for Work and Pensions [2006] 2 AC 91 at paragraph 129). 

Hence the courts in the Rodriguez case, including the Privy Council, are engaged in an exercise of constitutional rights interpretation substantially similar to that which would apply were they dealing with a claim under the Human Rights Act. Clearly then, the forthcoming decision of the Privy Council will be of great interest in Britain, in particular as to whether it will develop the law on discrimination on grounds of sexual orientation.  

The case will be heard on Wednesday by a Judicial Committee consisting of three Supreme Court Justices and two retired Court of Appeal judges, Lord Phillips, Baroness Hale, Lord Collins, Sir Jonathan Parker and Sir Henry Brooke.

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