Mr Justice Walker:
Table of Contents
|B. Background to this judgment
| B1. This litigation and the regulatory position
| B1.1 Ms Elmes's claim in a nutshell
| B1.2 The parties to the present litigation
| B1.3 Nomination 2007-14: the 2007 EW regulations & 2008 scheme
| B2 Brewster & the stays affecting the present proceedings
| B3. Ms Elmes's position, & the position of relevant children
| B3.1 Ms Elmes's personal position
| B3.2 The position of relevant children
| B4. Events from February 2017 up to the grant of permission
| B4.1 After Brewster: HMRC, Treasury, LGPC and Advisory Board
| B4.2 The Treasury April 2017 advice
| B4.3 The proceedings revive, but Essex seeks a further stay
| B4.4 March 2017 JR grounds, acknowledgments of service, amended claim form
| B4.5 Essex's July 2017 position, DPG's response, & Essex's reply
| B4.6 Essex's August 2017 position and DPG's response
| B4.7 DPG and the 2014 transitional regulations
| B4.8 DCLG August 2017 letter, LGPC bulletin & HMRC 8 Sep email
| B4.9 Essex's September 2017 position and DPG responses
| B5 Grant of permission to proceed on 15 November 2017
| B6 From grant of permission up to December 2017
| B6.1 Advisory Board 16 Nov, exchanges, Essex's detailed grounds
| B6.2 The Secretary of State's stance: no objection, no participation
| B6.3 DPG's 12 December 2017 letter to ELS
| B7 Pre-hearing preparations
| B7.1 Ms Elmes's skeleton argument: general
| B7.2 Ms Elmes: reasoned judgment or CPR PD 54A order?
| B7.3 Ms Elmes's skeleton argument on the substantive issue
| B7.4 Essex's skeleton argument
| B7.5 The November 2017 Advisory Board paper
| B7.6 The August 2017 adverse opinion, and what it said
| B7.7 August 2017 adverse opinion: the parties' awareness
| B8 The hearing on 18 January 2018
| B9 Events after the hearing
|C. Relevant regulations in England and Wales
|D. True legal meaning of the 2007 EW regulations
| D1 True legal meaning: the substantive question
| D2 What was common ground in Brewster
| D3 Brewster: Supreme Court reasoning on disputed matters
| D4 Approach of this court to Northern Irish decisions
| D5 Essex's July 2017 position
| D6 The August 2017 adverse opinion
| D7 The substantive question: conclusion
|E. Procedural questions
| E1 Procedural questions: introduction
| E2 The procedure for agreed final orders
| E3 Objections to a reasoned judgment
| E3.1 Objections to a reasoned judgment: introduction
| E3.2 Lack of "precedent" value
| E3.3 Theoretical issues
| E3.4 The suggested need for a "contradictor"
| E4 The potential role of interested parties and interveners
|F. Keeping the court informed & other practical issues
- This application for judicial review has required the court to determine the true legal meaning of provisions in a local government pension scheme ("LGPS") once account is taken of the Human Rights Act 1998 ("the 1998 Act"). However it has wider ramifications. Among other things, it concerns:
(1) as regards the law in England and Wales concerning the grant of declarations and other discretionary remedies, procedural questions of general importance in public law cases as to:
(a) the need to consider whether, and if so how, proceedings can be framed in a way which seeks to ensure that potential practical issues are addressed, and that those who might be entitled, or who might reasonably wish, to take part can do so or apply to do so; and
(b) the need to ensure that the court is made aware of anything else which has the potential to affect the court's decision whether or not to grant the proposed discretionary remedy;
(2) as regards the substantive law in England and Wales governing local authority pension schemes, a question of importance for anyone who was a cohabiting partner, or a child, of a local government employee ("the scheme member") in those instances where:
(a) the scheme member died, leaving a surviving cohabiting partner, during the period between 1 April 2008 and 31 March 2014 inclusive;
(b) the scheme member had not complied with a requirement ("the nomination requirement") to nominate the cohabiting partner to receive benefits under the scheme; and
(c) if the nomination requirement had been met, the cohabiting partner would have been entitled to receive benefits in the form of a "survivor's pension" under the scheme.
- The hearing of the application for judicial review took place on 18 January 2018. The claimant and the defendant were represented respectively by Mr Chris Buttler of counsel, instructed by Deighton Pierce Glynn ("DPG"), and Mr Andrew Sharland (then of counsel, now Queen's Counsel), instructed by Essex Legal Services ("ELS"). The interested party did not appear at the hearing but, through the Government Legal Department ("GLD") and latterly Mr Julian Milford and Mr Christopher Knight of counsel, provided information at my request. I have been much assisted by oral submissions by Mr Buttler and Mr Sharland at the hearing, and by written material provided by the legal teams for all three parties before, during and after the hearing.
- At the hearing I granted, among other things, a declaration ("the incompatibility declaration") that the nomination requirement was incompatible with article 1 of the first protocol ("A1P1") to, and article 14 of, the European Convention on Human Rights ("the Convention", a term I shall use to include the first protocol) and must therefore be disapplied.
- I also granted a declaration ("the entitlement declaration") that Ms Elmes was entitled to be paid a survivor's pension under the LGPS from 13 November 2011 onwards, and an order ("the payment order") requiring Essex by 2 February 2018 to pay to Ms Elmes the arrears of her survivor's pension, together with interest.
- These three remedies were granted on the footing that Essex did not object to the two declarations and the payment order, but did not consent to them. In this judgment I give my reasons for granting those remedies.
B. Background to this judgment
B1. This litigation and the regulatory position
B1.1 Ms Elmes's claim in a nutshell
- This litigation was begun by the claimant, Ms Nicola Elmes, on 5 June 2013. Her aim was to resolve a dispute with the defendant, Essex County Council ("Essex"). In its capacity as an administering authority for pensions purposes Essex had, in a reconsideration decision dated 4 April 2013, refused to grant Ms Elmes a survivor's pension. The sole reason for that refusal was that Ms Elmes's partner had not complied with the nomination requirement. Ms Elmes's response was that this did not matter.
- Ms Elmes's contention was that the nomination requirement infringed the Convention. She submitted that in consequence, under the 1998 Act, the regulations governing pension provision must be read as if the nomination requirement did not apply.
- In her original claim form Ms Elmes sought two remedies only:
(1) an order quashing the 4 April 2013 decision; and
B1.2 The parties to the present litigation
- The regulations applicable to Ms Elmes's claim were made by the Secretary of State for Communities and Local Government ("the Secretary of State"), who was named as an interested party. I refer below to the Department for Communities and Local Government as "DCLG". With effect from 8 January this year the Secretary of State and DCLG became respectively the Secretary of State for Housing, Communities and Local Government and the Ministry of Housing, Communities and Local Government. However I shall continue to use the earlier abbreviations to include the new entities. I do so on the footing that references to actions of the Secretary of State or DCLG on and after 8 January 2018 are to be understood as involving the new entities rather than the old. As regards the present litigation I shall refer to Ms Elmes, Essex and the Secretary of State as "the parties to the present litigation", or simply as "the parties".
B1.3 Nomination 2007-14: the 2007 EW regulations & 2008 scheme
- In 2007 local government pensions in England & Wales provided a survivor's pension to a person who was, at the time of the member's death, a spouse or civil partner of the deceased member. No provision was made for a person living as a cohabiting partner, but neither as a spouse nor as a civil partner, with the deceased member. For convenience I shall refer to such a person as "a cohabitor".
- In order to make provision for surviving cohabitors, previous regulations were revised in 2007 in England & Wales: see the Local Government Pension Scheme (Benefits, Membership Contributions) Regulations 2007, SI 2007/1166 ("the 2007 EW regulations"). As set out in section C below, where certain cohabitation requirements were met the revisions conferred on a "nominated cohabiting partner" an entitlement to a survivor's pension. Thus the nomination requirement was inserted by a qualification that a cohabiting partner had to have been "nominated". The effect was that the benefit to surviving cohabitors was conferred on an "opt-in" basis: the deceased member had to have "nominated" the cohabiting partner by lodging a declaration signed by both of them.
- The scheme put in place by the 2007 EW regulations came into being on 1 April 2008. I shall refer to it as "the 2008 scheme". It, in conjunction with earlier schemes in England & Wales so far as they continued to be applicable and later schemes in England & Wales that became applicable, can conveniently be referred to together as "the England & Wales LGPS".
- The regulations in England & Wales were altered with effect from 1 April 2014. If a scheme member died from that date onwards then surviving cohabitors no longer needed to satisfy a nomination requirement in order to claim a survivor's pension. At one stage DPG advanced an argument that transitional provisions removed the nomination requirement where a scheme member died earlier than 1 April 2014. This argument, however, was not pursued: see section B4.7 below.
B2 Brewster & the stays affecting the present proceedings
- When the present proceedings were begun litigation involving almost identical issues was under way in Northern Ireland. The proceedings there were brought by Ms Denise Brewster, who was the surviving cohabiting partner of a deceased local government employee, Mr Lenny McMullan. The parties to the present litigation sensibly agreed to a series of stays. The effect of those stays was that further steps in this litigation would await the final outcome of Ms Brewster's proceedings.
- Ms Brewster's entitlement to a survivor's pension was governed by the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009, S.R. No. 32 of 2009. I shall refer to them as "the 2009 NI regulations". They revised previous regulations in Northern Ireland so as to provide a survivor's pension to a cohabitor. For this purpose they introduced a nomination requirement in almost identical terms to the nomination requirement in the 2007 EW regulations.
- As noted in section B1.3 above, in England & Wales new regulations were made in 2014, bringing an end to the nomination requirement. No such new regulations were introduced in Northern Ireland.
- On 8 February 2017 the Supreme Court, in Re Brewster; Brewster v Northern Ireland Local Government Officers' Superannuation Committee  UKSC 8,  1 WLR 519, held that the nomination requirement in the 2009 NI regulations had no justification and violated article 14 read with article 1 of the first protocol. It made a declaration that the requirement in the 2009 NI regulations for nomination be disapplied, and that Ms Brewster was entitled to receive a survivor's pension under the scheme.
- Thus while Brewster wound its way through the legal system Ms Elmes's litigation was held up for nearly 4 years. When Ms Elmes's claim was begun Treacy J at first instance ( NIQB 85) had already concluded that the Northern Irish nomination requirement was invalid under the 1998 Act because it infringed the Convention. However it could not be assumed that Treacy J's judgment would be the last word. Shortly after Ms Elmes's claim was begun the Northern Ireland Court of Appeal ( NICA 54) by a majority held that there was no infringement, and accordingly reversed Treacy J's decision.
- The decision of the Northern Ireland Court of Appeal was reversed by the Supreme Court. In sections D2 and D3 below I summarise the Supreme Court's reasoning. For present purposes I set out the two declarations made by the Supreme Court when allowing Ms Brewster's appeal:
IT IS DECLARED that
(1) The requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 that the appellant and Mr McMullan should have made a nomination be disapplied.
(2) The appellant is entitled to receive a survivor's pension under the Local Government Pension Scheme Northern Ireland.
- There is no reason to doubt that the decision of the Supreme Court, disapplying the nomination requirement, was given effect by the Northern Ireland authorities promptly, both for Ms Brewster and for all other relevant survivors of Northern Ireland scheme members. The natural reaction for Ms Elmes and others like her in England & Wales would have been to expect that relevant authorities here would do the same. But while that happened in some cases, it did not happen for Ms Elmes, nor for many other surviving cohabitors.
B3. Ms Elmes's position, & the position of relevant children
B3.1 Ms Elmes's personal position
- Ms Elmes's partner, Mr David Smith, was for many years an employee of Epping Forest District Council. In that regard he was also for many years a member of the Essex Pension Fund ("the fund"). This is one of a number of funds forming part of the England & Wales LGPS. Essex is the administering authority for the fund.
- Ms Elmes and Mr Smith lived together as a couple for more than 21 years. They had two children. Sadly Mr Smith died on 13 November 2011. If Mr Smith and Ms Elmes had filled in a nomination form, and Mr Smith had lodged the form with Essex, then Ms Elmes would have been entitled to a survivor's pension. When Ms Elmes claimed such a pension, Essex pointed out that no nomination form had been lodged by Mr Smith. That being the case, said Essex, the 2007 EW regulations prevented Essex from awarding a survivor's pension to Ms Elmes.
- As noted in sections B1.1 and B2 above, in circumstances where success was by no means assured, Ms Elmes began this litigation in June 2013. In February 2017, however, once the Supreme Court handed down its decision in Brewster, it must have seemed to Ms Elmes that more than 5 years after her partner's death she would surely receive the pension she had claimed.
B3.2 The position of relevant children
- I summarise here information provided to me by the parties in June this year concerning Mr Smith's children:
(1) under the 2007 EW regulations, upon the death of a scheme member, a "children's pension" was payable to a child of that member until the child turned 18, and if the child continued in full-time education the pension would continue to be paid until the age of 23.
(2) Mr Smith had a daughter from a previous marriage; she was approximately 28 years old when Mr Smith died and for that reason did not receive a children's pension.
(3) Mr Smith and Ms Elmes's elder child, Jessie, was born on 21 February 1995, and was thus aged 16 at the time of Mr Smith's death on 13 November 2011. On 22 December 2011 Essex advised Ms Elmes that Jessie would receive a pension of £298.88 each month until the age of 18 or, if she remained in full time education, until the age of 23. Jessie accordingly received a pension from Essex from 14 November 2011 until 30 June 2017, when Essex no longer had evidence that she was in full-time education.
(4) Mr Smith and Ms Elmes's younger child, Jake, was born on 21 January 1998, and was thus aged 13 at the time of Mr Smith's death. On 22 December 2011 Essex advised Ms Elmes that Jake would receive a pension of £298.88 each month until the age of 18 or, if he remained in full time education, until the age of 23. Jake accordingly received a pension from Essex from 14 November 2011 until 30 June 2016, when Essex no longer had evidence that he was in full-time education.
(5) Under the 2007 EW regulations the amount of a children's pension depended, among other things, on whether a survivor's pension was payable. Because Essex considered that on Mr Smith's death no survivor's pension was payable, Jessie and Jake received "higher rate" children's pensions. If Essex had considered that Ms Elmes was entitled to a survivor's pension, the amount of the children's pensions paid to Jessie and Jake would have been 25% less than the amount actually paid to them.
B4. Events from February 2017 up to the grant of permission
B4.1 After Brewster: HMRC, Treasury, LGPC and Advisory Board
- The Supreme Court decision in Brewster plainly called for consideration by those involved with the 2008 scheme. In addition to the parties to the present litigation, they included:
(1) Her Majesty's Revenue and Customs ("HMRC");
(2) HM Treasury;
(3) the Local Government Pensions Committee ("LGPC") of the Local Government Association;
(4) the LGPS Advisory Board ("the Advisory Board"), a body set up under Section 7 of the Public Service Pensions Act 2013 and the Local Government Pension Scheme Regulations 2013, SI 2013/2356, regulations 110-113, and which describes its aims as being to encourage best practice, to increase transparency and to coordinate technical and standards issues.
B4.2 The Treasury April 2017 advice
- On 6 April 2017 HM Treasury officials wrote to public sector pension schemes in England, Wales, Scotland and Northern Ireland. The letter, which I shall refer to as "the Treasury April 2017 advice", made clear that:
… cases like that of Ms Brewster should be dealt with in line with the UK Supreme Court's decision. Cases previously refused solely because of a lack of nomination form should be reconsidered and schemes should pay survivors benefits from the date of the member's death in eligible cases, regardless of when a claim is made.
B4.3 The proceedings revive, but Essex seeks a further stay
- Under the terms of the relevant stay these proceedings became active again on 8 March 2017, 28 days after the Supreme Court decision. Well before that date, Mr Gareth Mitchell of DPG wrote a letter to ELS on 17 February 2017. In that letter DPG sought confirmation that Essex would agree to the court making a declaration mirroring that granted to Ms Brewster. In support of this course of action, DPG stated:
"It is inevitable that the court will now conclude that the [nomination] requirement… was unlawful and in light of this, that your client's refusal to award Ms Elmes a survivor's pension cannot stand."
- On the same date DPG wrote to GLD. DPG's letter asked whether the Secretary of State intended to take part in the judicial review, in which event DPG sought full details of the basis upon which the Secretary of State intended to do so.
- On 3 March 2017 ELS wrote to DPG proposing that there be a further stay of proceedings. The main reasons advanced for this course were:
"Without meaning to be obstructive, presently our client cannot permit the Essex Pension Fund to make the payment without some guidance on how to proceed. There is an expectation that in light of the decision in Brewster, local government pension schemes and indeed all public sector pension schemes, will be given guidance and thereafter, if necessary, changes to the Regulations will be made.
Without that change to legislation our client cannot make changes to policy. Without prejudice to our client's position, even if it is the case that the court will conclude that the declaration requirement in Regulation 25 of the 2007 Regulations to be unlawful, until such a declaration by the court is made, our client's hands are tied on this issue. "
- On 8 March 2017, the day that the stay expired, DPG wrote to ELS, indicating that it was proposed to produce a "more detailed statement of grounds" for Ms Elmes. In the meantime DPG said that it was not persuaded that there should at this stage be a further stay.
B4.4 March 2017 JR grounds, acknowledgments of service, amended claim form
- On 15 March 2017 DPG sent to ELS and GLD a document described as a "supplementary statement of facts and grounds" ("the March 2017 JR grounds") settled by Mr Buttler and Mr Mitchell. Although the document did not expressly say so, it was apparent that it was proposed in order to replace, rather than to supplement, the previous grounds. After setting out extracts from DPG's letter of 17 February and ELS's reply of 3 March 2017, it continued:
The claimant submits that the defendant has misunderstood the issue. The relief needed to secure payment of a survivor's pension to the claimant is not the amendment of the regulations. The England and Wales regulations have already been amended to remove the nomination rule (in 2013). What is needed is to disapply the nomination rule in the applicable regulations, i.e. the 2007 regulations to secure the claimant's rights under Art 14 and A1P1 ECHR. That is what the Supreme Court declared should happen in relation to the equivalent regulations in Northern Ireland.
The claimant should not be prejudiced by further delay in the payment of the survivor's pension. The defendant must disapply the nomination rule pursuant to its duty to act compatibly with the claimant's ECHR rights pursuant to s 6(1) of the Human Rights Act 1998. If the defendant wants the legal certainty of a declaration from the court, it should submit to judgment…
- On 6 April the Secretary of State filed an acknowledgment of service seeking a new stay until 28 April 2017. The grounds in support said:
The interested party, together with other government departments, is in the process of considering the effect of the Supreme Court Judgment in Brewster  UKSC 8 in relation to public sector pension schemes.
Pending completion of the cross-HMG review, the interested party is not currently in a position to make any substantive submissions in respect of this claim, but wishes to reserve the right to do so in due course.
In view of the above, the interested party invites the court to consider a short further stay of proceedings, until Friday 28 April 2017. It is understood that the defendant has no objection to this proposal, which will serve to minimise costs.
- The Secretary of State's acknowledgment of service made no mention of the April 2017 Treasury advice. That advice was issued on the day that the acknowledgment of service was filed: see section B4.2 above. It was apparent from that advice that at least one government department, HM Treasury, had considered the effect of Brewster and had given clear advice to public sector pension schemes that cases like that of Ms Brewster should be dealt with in line with the UK Supreme Court's decision. To my mind this information plainly would have had a bearing on whether there could be any justification for the proposed further stay in Ms Elmes's case. I infer, from the absence of any reference to it, that at the time of filing the Secretary of State's acknowledgment of service those responsible for doing so were unaware of the fact that the Treasury April 2017 advice was about to be sent, or indeed may already have been sent, to public sector pension schemes.
- Consistently with the indication given in the Secretary of State's acknowledgment of service, on 7 April 2017 Essex filed an acknowledgment of service which supported the Secretary of State's application for a further stay, adding that this would minimise costs. Nothing more was said by Essex in its acknowledgment of service.
- The acknowledgments of service contained no indication as to whether there was an intention to contest all or any part of the claim. Nor did they identify any additional person that should be added as an interested party.
- As to the further stay proposed in the acknowledgments of service, neither the Secretary of State nor Essex sought to pursue this. It would have been pointless to do so. The proposed end date for the stay had been 28 April 2017. However, as spring turned into summer it became clear that "completion of the cross-HMG review" was going to take much longer than had previously been thought.
- Meanwhile, on 10 April 2017 DPG filed an updated permission bundle. It included the proposed March 2017 JR grounds along with a draft amended claim form. The draft amended claim form made it clear that the March 2017 JR grounds were relied on in place of the original statement of grounds. It also sought an additional remedy, which I shall refer to as "the April 2017 proposed declaration", expressed in this way:
A declaration that the claimant is entitled to a survivor's pension payable from the date of her partner's death.
- A consent order made on 24 May 2017 granted permission for amendment of the claim form accordingly.
B4.5 Essex's July 2017 position, DPG's response, & Essex's reply
- The next relevant step occurred on 14 July 2017, when ELS wrote a letter to DPG setting out what it described as Essex's "position". I shall refer to it as "Essex's July 2017 position". It was set out in two parts. The first part comprised three numbered paragraphs, each containing important features of the stance taken at that time by Essex:
1. It accepts that your client's inability to satisfy the nomination form requirement is not a bar to her entitlement;
2. It has satisfied itself that the documents that you have provided … evidence the co-habitation status of your client … ;
3. It has reconsidered the recalculation of the children's entitlement, this having previously been paid at a higher rate due to the view that your client was not entitled at that time, and has decided;
i) that it will not pursue recovery of the overpayment to the children which currently stands at around £9,500;
ii) not to decrease the payments being paid to the children … [in fact, however, by 14 July 2017 payments to the children had stopped: see section B3.2 above].
- Taken on their own, paragraphs 1 and 2 effectively admitted that Ms Elmes was entitled to a survivor's pension. However, as set out below, the second part asserted that if Essex were to make payment to Ms Elmes then both Ms Elmes and Essex would be penalised by the income tax authorities in the form of HMRC.
- Paragraph 3 of Essex's July 2017 position concerned the children of Ms Elmes and the late Mr Smith. It said that Essex had recalculated Jessie and Jake's children's pensions, and had found that they had been "overpaid in an amount which currently stands at around £9,500". This was not discussed at the hearing before me in January 2018. However the information supplied by the parties in June 2018 gave an explanation: see section 3.2 above. In broad terms, the alleged overpayment had arisen because they had received their children's pensions at the higher rate, whereas if Essex had realised that a survivor's pension was payable to Ms Elmes then they would have been paid 25% less.
- In ELS's letter of 14 July 2017 the second part of Essex's position comprised unnumbered paragraphs. Below I number them in square brackets for convenience, and set out the material provisions:
 However, our client is concerned that any payment to your client will be an unauthorised payment that will cause our client, but more particularly the pension scheme, to suffer a 40% sanction charge on both the initial payment and every payment thereafter. You may comment that it is a matter for our client, however, due to the unauthorised payment status your client will also suffer penalties through HMRC at a minimum of 40% which could rise to 55% depending on the total; pension benefit value i.e. including those she may be receiving from other sources. In addition she will also be liable for income tax in the normal way.
 An unauthorised payment in this instance would arise wholly due to [the lack of] an amendment of the regulations to take into account the requirements or more specifically the non-requirement as regards the particulars of the nomination form that now exists. Whilst our client's internal policy has taken this into consideration the regulations have not so are presently at odds with each other.
 Our client is seeking an agreement with HMRC and The Treasury to agree that these types of cases will not be considered unauthorised payments so as to enable the payments to be made without either party suffering sanctions or penalties …
 We anticipate that we have made it clear that it is not that our client is unwilling to make payment to your client but that if it does so in the absence of a regulation allowing it to do so both parties will be penalised. Our client is not of course a tax specialist and your client may wish to seek independent advice in respect of the tax implications as indicated above.
 … We therefore suggest that it would be pragmatic for the case to be stayed; it is clear that both parties are using all endeavours to reach the end objective and we agree that little will be achieved by allowing the proceedings to continue to determine the permission application, not least due to unnecessary costs being incurred.
- In this second part of Essex's position there seems to be a degree of confusion as to what, in Essex's view, needed to happen in order to ensure that Ms Elmes and Essex were not penalised. In order to make sense of paragraph  I have inserted "[the lack of]" before the words "an amendment". It seems to me clear that the message conveyed by paragraphs  and  is that relevant regulations would need to be amended. However, paragraph  seems to assume that it would suffice if HMRC and HM Treasury were to agree that "these types of cases will not be considered unauthorised payments".
- The response from DPG on 17 July 2017 identified a more fundamental confusion:
The payment of the [survivor's] pension would not be an unauthorised payment. As we have already explained in correspondence, the effect of the Human Rights Act is that the nomination... requirement is… of no effect. That is why the Supreme Court granted the relief it did in Brewster…
- ELS responded by email on 18 July 2017, stating:
…we may be at cross-purposes with this matter. My client is aware of the [Human Rights] impact but is speaking of an unauthorised payment pursuant to the pension regulations.
- It is apparent from the passage quoted above that ELS had simply not understood the fundamental point being made by DPG. In its email of 17 July 2017, as in much of its correspondence with ELS and GLD in this case, DPG put matters bluntly. On this particular occasion, at least, I am inclined to think that DPG could usefully have explained basic propositions which those drafting the March 2017 JR grounds may have regarded as so elementary as not to need spelling out. What ELS's letter of 14 July, and email of 18 July, failed to grasp, and what Essex needed to be able to point out to HMRC, was not merely that the Supreme Court in Brewster held the nomination requirement in the 2009 NI regulations to be of no effect, but also that:
(1) Brewster was a decision about the true meaning of the 2009 NI regulations;
(2) as to what that meaning was, Brewster had the consequence that once account was taken of the 1998 Act the true meaning of the 2009 NI regulations was that a survivor's pension must, whether or not there had been a nomination, be paid to a cohabiting partner who met other requirements in those regulations; and
(3) because the 2007 EW regulations were materially identical to the 2009 NI regulations, the reasoning in Brewster applied equally to Ms Elmes's case, with the consequence that there was no question of payment to Ms Elmes being unauthorised in law: on the contrary, payment to Ms Elmes was not merely authorised in law, it was obligatory.
- ELS's email of 18 July 2017 added that an update from Essex was expected the following day, once Essex had spoken with both HMRC and DCLG.
B4.6 Essex's August 2017 position and DPG's response
- It was not, however, until 9 August 2017 that ELS reverted to DPG. In a letter of that date, ELS reported that both HMRC and "the governing bodies of the scheme" were:
… not clear on the consequences of settling the claim by way of consent rather than by Judgment.
- ELS added that Essex needed "clear parameters and direction in this matter" with the result that Essex considered the position ("Essex's August 2017 position") to be that it had:
… no alternative but to await the Judgment in order that clarity is achieved for the purposes of making lawful payment which will deter both the external agencies and governing body from levying sanctions …
- DPG then sent an email to ELS on 16 August 2017. The email identified, in trenchant terms, why 6 aspects of Essex's August 2017 position called for clarification. It is not necessary for present purposes to set out those aspects.
B4.7 DPG and the 2014 transitional regulations
- In an email sent on 21 August 2017 DPG asked Essex to address a further point. This was whether Ms Elmes would be entitled to payment of a survivor's pension as a consequence of regulation 17(10) and (11) of the Local Government Pension Scheme (Transitional Provisions, Savings and Amendment) Regulations 2014 ("the 2014 transitional regulations"). My order dated 15 November 2017 (see section B5 below) gave permission to Ms Elmes to advance this point. However it was not relied on at the hearing before me. I shall accordingly say no more about it.
B4.8 DCLG August 2017 letter, LGPC bulletin & HMRC 8 Sep email
- On 17 August 2017 DCLG wrote a letter to administering authorities of the England & Wales LGPS, including Essex. I shall refer to this letter as "the DCLG August 2017 letter". With the addition of paragraph numbers in square brackets for convenience, material parts of the DCLG August 2017 letter stated:
" … regarding the implications of the Supreme Court's ruling earlier this year in the case of Brewster. This letter is intended to provide some guidance to those managing funds. It is not statutory guidance, as we have no power to issue statutory guidance on this point, and neither is it intended to be, and should not be construed as, legal advice. As you will appreciate, the correct interpretation of the LGPS regulations is a matter for the courts and not government departments.
 In the case of Denise Brewster, she successfully challenged the requirement in the Local Government Pension Scheme (Northern Ireland) that a surviving adult partner had to be formally nominated in order to be entitled to payment of survivor benefits. The court ruled that this administrative requirement constituted unlawful discrimination and a breach of the European Convention on Human Rights. As the other underlying scheme conditions were met then it should be disapplied.
 Most public sector pension schemes that have, or have had, such a nomination requirement for unmarried partners, are now taking the view that scheme managers can rely on this judgment and section 3 of the Human Rights Act 1998 as a legal basis for not requiring that a surviving adult partner be nominated in order to receive survivor benefits. This section of the Act provides that, as far as possible, regulations such as those covering the LGPS must be read and given effect in a way which is compatible with the European Convention on Human rights. This approach is also being applied to applications which have previously been rejected. In these circumstances, schemes are also being encouraged not to require survivors to claim within any specific limitation period.
 We consider that this approach is reasonable in the circumstances and that LGPS funds should give careful consideration to adopting a similar approach to relevant cases. In adopting this approach a fund accepts that a power to pay these benefits already exists in the LGPS regulations when read and given effect in a way which is compatible with Convention rights and that the tax status of them is no different from any other payments made under the scheme.
 We suggest that funds consider the following:…
[5.3] Where a new claim for a survivor's pension is accepted but a child's pension was being paid at the higher rate (due to an adult survivor's pension not being paid) the fund should advise as soon as possible the recipient of the child's pension that its intention would be to reduce it once the adult survivor pension is being paid.
[5.4] In these circumstances, technically there will have been an element of overpayment in the child's pension. Decisions on whether to attempt recovery should be handled sensitively, having regard to the need to avoid hardship or injustice, the fund's own policy on overpayments and general guidance on the appropriate use of public money.
 Some cases will inevitably raise complex issues and it is not possible to provide guidance on the application of the judgment in all circumstances. Accordingly, scheme managers should seek their own independent legal advice if they are in any doubt as to how to proceed."
- The DCLG August 2017 letter was considered by the LGPC. In LGPC Bulletin 161–August 2017 ("LGPC Bulletin 161") it gave its members, including Essex, a summary of what was said in the DCLG August 2017 letter. LGPC Bulletin 161 noted that the letter stated that it would, in DCLG's view, be "reasonable" for funds to rely on the Supreme Court's Brewster judgment and section 3 of the 1998 Act, to not [emphasis in the original] require that a survivor partner must have been nominated in order to be eligible for a survivor's pension. It added:
"Separately DCLG have confirmed that they have received legal advice that there is no need for them to amend [relevant regulations] to reflect the Brewster judgment and they therefore have no plans to do so."
- It later emerged that one of the administering authorities (not Essex) in fact sought legal advice in the light of the DCLG August 2017 letter. The advice was sought from solicitors with expertise in local government, who in turn consulted counsel with expertise in pensions. None of the legal teams in the present proceedings played any role in the giving of that advice. I deal with it in sections B7.5 and B7.6 below.
- Meanwhile, Essex had been in touch with HMRC. On 8 September 2017 HMRC sent an email to Essex:
"My colleagues in our technical section have reviewed this and advised that, at the moment, the question is hypothetical as currently the individual has no right to benefits under the scheme rules. The appropriate time for us to offer an opinion would most likely be when the judicial review is finalised and the outcome known."
- This email left open the possibility that payment of a survivor's pension in the absence of a nomination might be treated by HMRC as unauthorised. I shall refer to this possibility as "the HMRC risk".
B4.9 Essex's September 2017 position and DPG responses
- On 22 September 2017 ELS sent an email in response to DPG's email of 6 August. It set out what I shall call "Essex's September 2017 position". With the addition of paragraph numbering in square brackets, this was:
" My client had originally intended to contest the claim. However, it is my client's position that it does not contest the application for permission.
 My client does not consider that a declaration by consent will be sufficient for its purpose simply because it considers that in order to make payment a Judgment by way of determination is required from the court.
 My client has no objection to the court determining the substantive claim rather than the permission, without hearing.
 Whilst my client may consider that your client is entitled to the relief sought, its hands are tied insofar as it requires a determination by the judge in order to make available any relief that your client may be entitled to."
- On 29 September and 31 October 2017 DPG wrote to ELS and GLD. Among other things, DPG repeated earlier questions and pressed Essex and the Secretary of State as to whether they objected to Ms Elmes being granted relief set out in a proposed consent order.
B5 Grant of permission to proceed on 15 November 2017
- On 15 November 2017 the present case was put before me for consideration on the papers. The question that arose was whether permission to proceed should be granted. I granted permission and gave case management directions. In my observations I said:
A. On the face of it, this ought to be an open and shut case. The Supreme Court decided the relevant point of law on 8 February this year: Brewster  UKSC 8. The acknowledgements of service requested merely that there be a stay until 28 April to enable the government to consider the effect of the decision.
B. More than 6 months have passed since 28 April. It seems likely that Ms Elmes is just one of many cohabitors who have not only lost the physical support of their partner but have also been unlawfully deprived of their pension entitlement for far too long.
C. An objection was taken that time was needed to consider the legality of payment without a judgment. There was no need to raise this objection as regards Ms Elmes: she has brought these proceedings. An appropriate judgment could have been granted long ago by consent if such consent had been given.
D. A concern was then expressed that penalties would be levied if payment were made outside the scheme. This concern is misplaced: the court's declaration would establish that the payment is both lawful and required by the scheme when the scheme is properly interpreted under the law of England and Wales.
F. In these circumstances it is time for both central and local government to act without further delay. I have set the timetable above accordingly.
B6 From grant of permission up to December 2017
B6.1 Advisory Board 16 Nov, exchanges, Essex's detailed grounds
- On 16 November 2017 a meeting took place of the Advisory Board. Members of the Advisory Board were provided with a paper ("the November 2017 Advisory Board paper") prepared for this meeting. I deal with this in section B7.5 below.
- In a letter to DPG dated 24 November 2017 ELS, among other things, stated that it was:
… now seeking confirmation from HMRC and the LGPS …to see whether [the observations in the order granting permission] and a formal consent order will satisfy them and protect the parties from the imposition of penalties. ….
- On 1 December 2017 DPG wrote to ELS. Among other things, DPG recorded that on the internet it had found the DCLG August 2017 letter. DPG said that this letter made it clear that there was no reason whatsoever for continuing to delay payment of a survivor's pension to Ms Elmes. There had, said DPG, been a failure on the part of Essex to act in accordance with its duty of candour.
- Essex filed detailed grounds of resistance on 4 December 2017 ("Essex's detailed grounds"). Paragraph 1 said that in its letter of 14 July 2017 Essex had accepted the principle that the nomination requirement should be disapplied and that Ms Elmes met all other criteria for payment of a survivor's pension. In paragraph 2, however, Essex expressed the view that "a short judgment of the court to that effect is necessary." Two reasons were given. The first was that such a judgment would eliminate the risk that payments made to Ms Elmes would be treated as "unauthorised payments" which could have adverse tax consequences both for Ms Elmes and for Essex. The second was that a clear legal precedent would be of benefit to other local authority pension schemes.
- In the remainder of Essex's detailed grounds, paragraph 3 answered Ms Elmes's point concerning the 2014 transitional regulations, and paragraph 5 noted that Essex agreed to pay Ms Elmes's costs on the standard basis. Paragraph 4 recorded Ms Elmes's suggestion in DPG's email of 16 August 2017 that the court should determine the judicial review claim without a hearing pursuant to CPR 54.18. It also recorded that Essex had agreed to that course on 22 September 2017. Paragraph 4 continued that Essex remained of the view that this was appropriate in particular because such a course of action should mean that the matter is determined quickly.
B6.2 The Secretary of State's stance: no objection, no participation
- On 6 December 2017 GLD wrote to the court stating that the Secretary of State had no objection to the relief sought in the amended claim form. For that reason the Secretary of State did not intend to contest the proceedings, to file detailed grounds of defence or written evidence, or to participate in the forthcoming hearing. There was no objection by the Secretary of State to the matter being determined without a hearing as proposed in Essex's detailed grounds. GLD's letter added that, in case it should be of assistance to the court, the DCLG August 2017 letter was attached.
B6.3 DPG's 12 December 2017 letter to ELS
- On 12 December 2017 DPG wrote to ELS. DPG noted that, while Essex conceded that Ms Elmes was entitled to the relief sought in her amended claim form, it refused to compromise the claim by way of a consent order. The letter continued:
5. The only sense our client can make of your client's position is that your client has decided to hijack her claim for its own purposes.
6. Our client infers from your client's continued failure to agree a consent order that your client seeks a judgment in rem, not because this is necessary to resolve her claim but in order to resolve or to pre-empt a dispute between your client and HMRC.
7. It is noted that your client in addition seeks to utilise this claim to secure "a precedent which will be of benefit to other local authority pension schemes."
- DPG's letter of 12 December added that Ms Elmes was dismayed and upset that Essex continued not to pay her a survivor's pension even though all parties to the claim accept that she is entitled to it. The letter continued:
"Your client's conduct perpetuates her grief and is appalling."
- In the remainder of the letter of 12 December 2017 DPG said that it was too late to apply for determination of the claim without a hearing. The letter set out reasons for this which I need not elaborate here.
B7 Pre-hearing preparations
B7.1 Ms Elmes's skeleton argument: general
- Ms Elmes's skeleton argument was filed on 11 January 2018. It noted that in Essex's detailed grounds, Essex had not disputed that Ms Elmes was entitled to a survivor's pension. However Essex had contended that it was necessary for the court to give judgment in order to achieve two objectives:
(1) to "eliminate the risk that payments made to [Ms Elmes] will be treated as 'unauthorised payments' which could have adverse tax consequences both for [Essex] and [Ms Elmes]"; and
(2) to set a precedent that would be of value to Essex and other local authorities.
- After noting other aspects of Essex's detailed grounds, Ms Elmes's skeleton argument said at paragraph 7:
7. There are potentially three issues to be resolved at trial:
7.1. First, should the court accede to [Essex's] request for judgment, rather than considering whether to grant a declaration of Ms Elmes's entitlement to a pension in light of an agreed statement of the reasons?
7.2. Second, is [Ms Elmes] entitled to a pension on the ground that the nomination rule in regulation 24 of the [2007 EW regulations] must be disapplied following Brewster's case?
7.3. Third, should [Essex] pay [Ms Elmes's] costs on the indemnity basis?
- The third potential issue is no longer live: the parties have reached agreement on costs. I summarise in section B7.2 below what was said in Ms Elmes's skeleton argument on the first potential issue. What was said in Ms Elmes's skeleton argument on the second potential issue is summarised in section B7.3 below.
B7.2 Ms Elmes: reasoned judgment or CPR PD 54A order?
- The first potential issue identified in Ms Elmes's skeleton argument was a procedural issue. Ms Elmes's skeleton argument urged that, as her claim was uncontested, paragraph 17 of Practice Direction A to CPR 54 ("CPR PD54A") applied. It added that CPR PD54A para 17 reflected the terms of Practice Direction (Administrative Court: Uncontested Proceedings)  1 WLR 1377, and that equivalent guidance was provided at paragraph 22.4 of the Administrative Court: Judicial Review Guide 2017 (July 2017).
- For ease of reference I set out here paragraph 17 of CPR PD54A:
Agreed final order
17.1 If the parties agree about the final order to be made in a claim for judicial review, the claimant must file at the court a document (with 2 copies) signed by all the parties setting out the terms of the proposed agreed order together with a short statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on.
17.2 The court will consider the documents referred to in paragraph 17.1 and will make the order if satisfied that the order should be made.
17.3 If the court is not satisfied that the order should be made, a hearing date will be set.
17.4 Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order.
- In that regard Ms Elmes's skeleton argument noted what was said by Lang J in R (Gacal) v SSHD  EWHC 1437 (Admin) at para 27:
Because the claim is brought in the name of the Queen, and the court is exercising a supervisory jurisdiction, the court must ensure that settlements are properly made for justifiable reasons. Public law claims are not the same as private law claims, where the parties are free to reach agreement on such terms as they see fit. Therefore consent orders are scrutinised by a person exercising judicial powers, i.e. a Judge, a Master or an Administrative Court lawyer exercising delegated judicial functions. They are only approved and sealed if they are found to be satisfactory.
- Ms Elmes's skeleton argument maintained that the proper means by which to resolve an uncontested claim like the present was to follow the procedure set out in paragraph 17 of CPR PD54A. This was said to be the case notwithstanding Essex's two objectives (described in section B7.1 above).
- As to the first of Essex's two objectives, Ms Elmes's skeleton argument submitted, in summary:
 It was most unlikely that HMRC would challenge the lawfulness of Essex paying a pension to Ms Elmes.
 Even if there were a justifiable concern that HMRC might challenge Ms Elmes's entitlement to a pension, this is not an issue in these proceedings. It is generally inappropriate for the court to give judgment on theoretical issues.
 To enable the court to give judgment, it would need to hear both sides of the argument: the person seeking the court's adjudication "must be able to secure a proper contradictor" (Russian Commercial Industrial Bank v British Bank for Foreign Trade Ltd  2 AC 438, 448, per Lord Dunedin); "it would have been unsatisfactory to decide the question without hearing both sides of the argument" (R (A) v Lewisham Youth Court  1 WLR 34, para 4, per Toulson LJ).
 If a dispute arose between the Essex and HMRC it would be appropriate to resolve that dispute in proceedings between those two parties.
- As to the second of Essex's two objectives, Ms Elmes's skeleton argument submitted that it was difficult to see any "precedent" value of a judgment given after hearing only one side of the argument. If in future HMRC advanced a respectable argument that Ms Elmes was not entitled to a pension, the court's judgment in this case would be no bar to such an argument, because this court would not have given consideration to that argument.
B7.3 Ms Elmes's skeleton argument on the substantive issue
- The second potential issue identified in Ms Elmes's skeleton argument was the substantive issue whether the nomination requirement must be disapplied. Here the skeleton argument simply relied on Ms Elmes's submissions in the March 2017 JR grounds. Ms Elmes's skeleton argument commented that they were not understood to be in dispute. It added that it would only be necessary to determine this substantive issue if the parties were unable to agree a draft declaration and statement of reasons.
- The declaration sought in Ms Elmes's skeleton argument was that she was entitled to be paid a survivor's pension by Essex from 13 November 2011 onwards. This was in broad terms the same as the April 2017 proposed declaration in the amended claim form: see section B4.4 above.
B7.4 Essex's skeleton argument
- Essex's skeleton argument was filed on 16 January 2018. It affirmed that Essex accepted:
(1) that the nomination requirement in the 2007 EW regulations should be disapplied as it is contrary to Article 14 read with Article 1 of Protocol 1; and
(2) that Ms Elmes meets all other criteria for the payment of a survivor's pension from the Essex Pension Fund.
- However, Essex was of the view that a short judgment of the court to that effect was necessary to eliminate the HMRC risk, and was desirable to provide a precedent to Essex in future cases and to local authorities generally.
- Essex's skeleton argument gave an explanation of the statutory provisions giving rise to the HMRC risk:
Essex Pension Fund is only permitted to make authorised payments, see section 164 Finance Act 2004 (FA 2004). Pensions permitted by the "pension death benefit rules" (set out at section 167) are authorised member payments. If the pension did not satisfy these conditions and therefore was not an "authorised member payments" (e.g. because of the fact the benefits were not permitted under the LGPS regulations in the absence of a nomination form) then the pension would have to be treated as an "unauthorised member payment" as defined in section 160(2) of the FA 2004. Unauthorised payments charges (40%) (and potential unauthorised payments surcharges (15%)) would then apply to any "unauthorised member payments" under section 208 (and 209) of the FA 2004. In addition [Essex] as administering authority could also potentially face a scheme sanction charge under section 239 of between 15 and 40% of the unauthorised payment (depending on whether or not the unauthorised payments charge has been paid).
- As to the likelihood of the HMRC risk coming about, Essex accepted that it was not large. However running even a small risk that the fund might be subject to a significant financial sanction would be inconsistent with the fund's fiduciary duties. This was said to be the primary reason why Essex sought a judgment in this case rather than agreeing to dispose of the matter by consent.
- Essex's skeleton argument asserted that such an approach is not unusual in other areas of the law. By way of example, it was quite common for a public body, subject to a disclosure application, to be willing to provide the disclosure sought but to require an order of the court compelling such disclosure rather than providing disclosure voluntarily. In this way, submitted Essex, the public body would protect itself from any challenge by a third party who might oppose such disclosure.
- As to the desirability of providing a precedent, Essex pointed to what was said in paragraph 11 of the November 2017 Advisory Board paper. I set this out in section B7.5 below.
- More generally, Essex commented that courts up to and including the Supreme Court regularly give judgments in matters where they have only heard one side of the argument: see Gisda Cyf v Barratt  ICR 1475. A more recent example was R (C) v First-Tier Tribunal  EWHC 707 (Admin).
- As to whether the court should take that course, Essex's skeleton argument noted that Ms Elmes had not articulated any reason why she would somehow be worse off if the matter was resolved by a reasoned judgment rather than by way of a consent order. By contrast, if Essex were correct and there was a risk, however small, of adverse financial consequences, then Essex's skeleton argument submitted that Ms Elmes would be better off if the matter was disposed of by a judgment rather than a consent order.
B7.5 The November 2017 Advisory Board paper
- As noted in section B6.1 above, on 16 November 2017 a meeting took place of the Advisory Board. The November 2017 Advisory Board paper, prepared for this meeting, did not appear in the bundle prepared for the 18 January hearing. Instead, it was attached to Essex's skeleton argument. It was then included with other late material in a new tab 11 of the bundle.
- The November 2017 Advisory Board paper said that the primary concern for the 2008 scheme was whether the Supreme Court's Brewster judgment had a direct "read across" so that any requirement for a nomination in any public service pension scheme must be disapplied. The paper added that this concern remained unanswered. The basis for concern was set out in paragraphs 8 to 11 of the paper:
8. In the immediate aftermath of the Brewster judgment, HM Treasury advised DCLG, as the scheme's responsible authority, that the scheme managers could be advised to make these payments and in doing so, could take comfort from section 3 of the Human Rights Act 1998.
9. DCLG has deferred any direct guidance awaiting the outcome of a similar case that is E&W LGPS specific (Elmes v Essex CC) that was stayed pending the outcome of the Brewster case …
10. We are also aware that one administering authority has obtained counsel's opinion confirming that making any payment as a result of Brewster prior to a change in the E&W regulations would be ultra-vires.
11. The current, unhelpful, position is that some administering authorities have made payments in the spirit of the Brewster judgment whereas others have decided not to do so until the scheme's regulations are amended to remove the nomination requirement between 2008 and 2014.
- In relation to paragraph 9 of the November 2017 Advisory Board paper, it is desirable to record here some observations provided to the court by GLD on 17 January 2018. These were that:
(1) in the spring of 2017 the Secretary of State considered deferring giving guidance pending the outcome of the present case;
(2) thereafter, once new ministers were in place, the decision was taken to issue the DCLG August 2017 letter.
B7.6 The August 2017 adverse opinion, and what it said
- Shortly before the hearing in the present case I read paragraph 10 of the November 2017 Advisory Board paper. I asked the parties if they could find out whether a copy of the opinion could be made available to the court. It emerged that the "opinion" had been give orally on the telephone on 22 August 2017. I shall refer to it as "the August 2017 adverse opinion".
- According to a telephone attendance note which had been made publicly available, in the August 2017 adverse opinion counsel had advised by telephone that while the Supreme Court's decision in Brewster:
"… may well rule that the nomination requirement … is incompatible with a Convention right that does not in itself mean that the provision requiring a nomination form is invalid – that is section 6(2)(b).
The wording of section 6(2)(b) gives … a defence against any claim brought because there is no breach of statutory duty and no unlawful act which would be the subject of any claim for judicial review."
- I make observations about this telephone attendance note in section D6 below. For present purposes, I add that my inquiry led to the production of a report in October 2017 to an administering authority ("the October 2017 report"). The October 2017 report made reference to contact between the solicitors who made the telephone attendance note and DCLG. According to this report, the solicitors had made an unsuccessful request to DCLG:
…to ask if they would share the legal opinion that had led them to reference section 3 of the Human Rights Act [the 17 August DCLG letter], but not the impact of section 6. The request was refused.
B7.7 August 2017 adverse opinion: the parties' awareness
- I asked the parties to explain when they first became aware of the August 2017 adverse opinion, and if this was prior to 16 January 2018, to explain why it was not drawn to the court's attention earlier. I was told in response that:
(1) the Secretary of State was sent the August 2017 adverse opinion on 23 November 2017. Advice on the August 2017 adverse opinion was sought from GLD on 28 November 2017. GLD, after receiving assurances that the opinion was not protected by legal professional privilege, concluded that the analysis in the August 2017 adverse opinion was not compelling. GLD did not consider there to be any obligation or need to disclose the August 2017 adverse opinion;
(2) Essex's lawyers were not aware of the August 2017 adverse opinion until 17 January 2018. Essex itself however knew in September 2017 that the August 2017 adverse opinion had been given, and knew the nature of the opinion, but understood it to be subject to legal privilege. Counsel for Essex added that he agreed with GLD that there was no obligation to disclose to the court a note of advice given to a non-party in the litigation.
B8 The hearing on 18 January 2018
- At the start of the hearing Mr Buttler on behalf of Ms Elmes handed in a revised proposed order. It comprised 4 paragraphs. Taking them in reverse order, paragraph 4 specified an amount of costs to be paid by Essex to Ms Elmes. Paragraph 3 was an order requiring Essex to pay to Ms Elmes the arrears of her survivor's pension with interest. Paragraphs 1 and 2 comprised two declarations:
1. The requirement to nominate a person under regulations 24 and 25 of the [2007 EW regulations] is incompatible with Article 1 of the first Protocol to, and Article 14 of, the European Convention on Human Rights and must therefore be disapplied.
2. The claimant is entitled to be paid a survivor's pension under the Local Government Pension Scheme from 13 November 2011 onwards.
- Proposed declaration 2, like the declaration proposed in Ms Elmes's skeleton argument, was broadly similar to the April 2017 proposed declaration. It concerned only the position as between Essex and Ms Elmes. However proposed declaration 1 was new. It echoed the first declaration made by the Supreme Court in Brewster: see section B2 above.
- Mr Buttler then made submissions on the substantive question whether the nomination requirement in the 2007 EW regulations must be disapplied. He stressed that the essential wording of the two sets of regulations was identical, with the result that the reasoning in Brewster applied. Moreover in the present case Mr Buttler submitted that in relation to the 2007 EW regulations Ms Elmes had a stronger case than Ms Brewster had had in relation to the 2009 NI regulations. The reason was that in relation to the 2007 EW regulations the Secretary of State:
(1) did not say that there was any good reason for the nomination requirement; and
(2) had in fact said that the nomination requirement was unnecessary.
- Mr Buttler referred to what Ms Elmes's skeleton argument had said about the theoretical nature of the points which the proposed judgment would deal with, about the need for a contradictor before the court could give a judgment, and about the limited value of a judgment given in the absence of argument. In response to a question from me he submitted that those points would not bar the court from making a declaration by consent accompanied by a statement of reasons.
- As to Essex's assertion that its hands were tied, in the sense that it needed a court judgment before it could pay money to Ms Elmes, Mr Buttler relied on the Supreme Court judgment in Brewster. He pointed out that nothing in that judgment said that there had to be a court order or judgment before the Northern Irish authority could pay Ms Brewster a pension.
- There were, Mr Buttler acknowledged, arguments the other way. It might be said that a judgment was called for in order to uphold the rule of law and to meet requirements of certainty. Where however, as here, there had been a Supreme Court judgment on the point, it would be right for an administering authority to apply what had been decided by the Supreme Court without waiting for a further judgment.
- For Essex, Mr Sharland stressed that the proposed order was not agreed. Accordingly the procedure under CPR PD 54A para 17 could not be adopted. On the other hand, Essex did not oppose the proposed order. In that regard Essex had considered the August 2017 adverse opinion. For reasons set out in a note provided on the morning of the hearing, Essex did not agree with the August 2017 adverse opinion. But Essex wanted a judgment for the reasons that had been set out in its skeleton argument.
- As to the desirability of informing the court of the August 2017 adverse opinion, Mr Sharland drew my attention to Gisda Cyf v Barratt  ICR 1475, an employment law decision of the Supreme Court. The respondent employee had not been represented in that court. The court's judgment noted at paragraph 28 that the court was therefore particularly grateful to counsel for the employer for his comprehensive and scrupulously fair examination of the arguments that lay on both sides of the debate.
- Mr Sharland accepted that if Ms Elmes had been unrepresented then a duty to inform the court of adverse arguments would have arisen. He also accepted that if an application had been made for a final order by consent under CPR PD 54A para 17, then it would be good practice for the parties to tell the court of any arguable reason why the proposed order should not be made.
- Turning to the suggested need for a contradictor, Mr Sharland drew my attention to the decision of Picken J in R (C) v First-Tier Tribunal  EWHC 707 (Admin). One of the contentions for the claimant in that case was that the tribunal had breached the common law duty of fairness by refusing to appoint a litigation friend for an appellant who lacked mental capacity. I shall refer to it as "the fairness contention". The tribunal seems, in accordance with normal practice, to have taken no part in the argument. At a permission hearing before Picken J the Lord Chancellor, who had been joined as an additional defendant, supported the fairness contention. At the request of both the claimant and the Lord Chancellor Picken J not merely granted permission but went on to grant a declaration that the refusal to appoint a litigation friend was unlawful and to quash the refusal decision. In his judgment Picken J gave detailed reasons for taking this course. It does not, however, appear that he was referred to cases identifying a need for a contradictor in order for a declaration to be granted.
- Mr Buttler in reply submitted that a declaration has the same effect whether it is made by consent or after argument. Mr Buttler acknowledged that there might be a concern at the possible impact on third parties of a declaration which might affect them.
- At the conclusion of argument I gave a short oral judgment stating that I considered it appropriate to make the proposed order, and that my reasons would be given in due course. After giving my judgment I observed that the argument had involved issues which would benefit from reflection, and on which I would be grateful for a joint note.
B9 Events after the hearing
- On 4 February 2018 the joint note ("the February 2018 note") that I requested was submitted by Mr Buttler and Mr Sharland. I express my thanks to all involved for the care which was taken in its preparation. In section D below I discuss aspects of the February 2018 note which are relevant for the purposes of the present judgment.
- In the course of preparing the present judgment I re-read the material provided for the hearing on 18 January, and noted that there were references to the position of the children of a deceased member of the scheme. I was concerned at suggestions in these references to the effect that the grant of a pension to a surviving cohabitor would reduce the entitlements of the deceased's children. Relevant questions in that regard appeared to me to include:
(A) whether Ms Elmes's children ought to have been named as interested parties in the judicial review?
(B) whether other children, especially those who had not been promised an exercise of discretion to remove any disadvantage, ought to have been recognised as a class with the status of interested parties in the judicial review?
(C) whether it would be appropriate for the claimant or defendant or interested party, or one or more of them, to make arrangements under which independent counsel would consider the position of children of deceased scheme members and advise whether an application should be made so as to advance arguments on behalf of such children, either as interested parties or as interveners?
- On these questions I now have the benefit of a note prepared on 4 June 2018 ("the June 2018 note"). It was prepared jointly by Mr Buttler on behalf of Ms Elmes, Mr Sharland QC on behalf of Essex, and Mr Milford and Mr Knight on behalf of the Secretary of State. I thank all involved for their work in preparing the June 2018 note. In section E4 below I discuss the points which arose in this regard.
C. Relevant regulations in England and Wales
- Prior to 2007 two consultation papers proposed changes in regulations forming part of the England & Wales LGPS. Among other things the proposed changes would make provision for a surviving cohabiting partner. The first consultation paper was produced in October 2004. It envisaged that individual schemes might provide survivors' benefits to cohabiting partners in circumstances where the member and cohabiting partner were living together as though they were husband and wife or civil partners. When outlining the types of evidence that would be required, the paper made a number of suggestions, including that there be a "valid nomination of a partner with whom there would be no legal bar to marriage or civil registration".
- A second consultation paper in 2006 set out four options, all of which proposed survivors' pensions for cohabiting partners. None of these four options contained a nomination requirement.
- On 3 April 2007 the 2007 EW regulations were made by the Secretary of State. They were laid before parliament on 4 April 2007 and came into force on 1 April 2008.
- The 2007 EW regulations were made under section 7 of the Superannuation Act of 1972. This enabled the Secretary of State to make provision with respect to pensions to be paid to, or in respect of, persons or classes of persons employed in local government service and:
other persons or classes of persons for whom it is appropriate in the opinion of the Secretary of State to provide pensions …
- In the event, the 2007 EW regulations included a nomination requirement. There appears to have been no public explanation of the decision to impose such a requirement in circumstances where it had not been suggested as one of the four options in 2006. The nomination requirement appeared in regulations 24 and 25. Regulation 24 provided that if a member died leaving a surviving "nominated cohabiting partner" that person would be entitled to a pension. Regulation 25 contained a definition of "nominated cohabiting partner".
- I set out regulations 24 and 25 below, incorporating in square brackets changes introduced by amending regulations so as to have effect from 1 April 2008, the date on which the 2007 EW regulations came into effect:
24. Survivor benefits: active members
If a member dies leaving a surviving spouse, nominated cohabiting partner or civil partner, that person is entitled to a pension.
The pension is calculated by multiplying his total membership, augmented as if Regulation 20(2) applied, by his final pay and divided by 160.
25. Meaning of "nominated cohabiting partner"
(1) Nominated cohabiting partner means a person nominated by a member in accordance with the terms of this regulation.
(2) A member (A) may nominate another person to receive benefits under the scheme by giving to his administering authority a declaration signed by both A and B that the condition in paragraph (3) has been satisfied for a continuous period of at least 2 years which includes the day on which the declaration is signed.
(3) The condition is that—
(a) A is able to marry or form a civil partnership with B,
(b) A and B are living together as if they were husband and wife or as if they were civil partners,
(c) neither A nor B is living with a third person as if they were husband and wife or as if they were civil partners,
(d) either B is financially dependent on A or A and B are financially interdependent.
(4) But a nomination has no effect if the condition in paragraph (3) has not been satisfied for a continuous period of at least 2 years which includes the day on which the declaration is signed.
(5) A nomination ceases to have effect if—
(a) either A or B gives written notice of revocation to [the administering authority],
(b) A makes a subsequent nomination under this regulation,
(c) either A or B marries, forms a civil partnership or lives with a third person as if they were husband and wife or as if they were civil partners, or
(d) B dies.
(6) B is A's surviving nominated partner if—
(a) the nomination has effect at the date of A's death, and
(b) B satisfies [the administering authority] that the condition [in paragraph (3)] was satisfied for a continuous period of at least 2 years immediately prior to A's death.
(7) For the purposes of this regulation, two people of the same sex are to be regarded as living together as if they were civil partners if they would be regarded as living together as husband and wife if they were not the same sex.
- In relation to children's pensions regulations 26 to 28 provided, so far as material:
26 Meaning of 'eligible child'
(1) Subject to paragraph (3), the child of a deceased member is an eligible child if he is wholly or mainly dependent on the member, and is less than 18 years of age, at the date of the member's death.
(2) But a child who is born on or after the first anniversary of the date of the member's death is not an eligible child.
(3) A dependent child who has reached the age of 18 but has not reached the age of 23 and is in full time education or undertaking vocational training at the date of the member's death is an eligible child.
(4) An appropriate administering authority may treat a dependent child who commences full time education or vocational training after the date of the member's death as an eligible child after he reaches the age of 18 and until he reaches the age of 23.
27 Children's pensions
(1) If a member dies leaving one or more eligible children, they are entitled to a children's pension.
(2) The pension is payable on the day following death.
(3) An eligible child ceases to be entitled to a pension when he ceases to be a child within regulation 26.
(4) The amount of that pension is calculated in accordance with regulation 28, 34 or 37, as the case may be.
(5) The appropriate administering authority may pay the whole or part of a children's pension to a person other than an eligible child, to be applied for the benefit of such one or more eligible children as the authority may direct.
28 Amount of children's pension
(2) If a survivor benefit is payable under regulation 24—
(a) where there is only one such child, the pension is calculated by multiplying the member's total membership, augmented as if Regulation 20(2) applied, by his final pay, and dividing by 320; and
(b) where there is more than one such child—
(i) the pension is calculated by multiplying the member's total membership, augmented as if Regulation 20(2) applied, by his final pay, and dividing by 160; and
(ii) those children are jointly entitled in equal shares.
(3) If no survivor benefit is payable under regulation 24—
(a) where there is only one such child, the pension is calculated by multiplying the member's total membership, augmented as if Regulation 20(2) applied, by his final pay, and dividing by 240; and
(b) where there is more than one such child—
(i) the pension is calculated by multiplying the member's total membership, augmented as if Regulation 20(2) applied, by his final pay, and dividing by 120; and
(ii) those children are jointly entitled in equal shares.
D. True legal meaning of the 2007 EW regulations
D1 True legal meaning: the substantive question
- By the time of the hearing before me there was no issue between the parties to the present litigation as to the true legal meaning of the 2007 EW regulations. No party to these proceedings disputed that, after taking account of the 1998 Act, and in the light of the Supreme Court judgment in Brewster, the 2007 EW regulations must be read as meaning that the nomination requirement does not apply.
- The Secretary of State by the time of the hearing had expressed consent to the making of the order previously proposed by Ms Elmes. There is no reason to doubt that the Secretary of State equally was content with the revised proposed order submitted by Ms Elmes on 18 January 2018. Essex's procedural stance, however, was that it did not consent to the order sought by Ms Elmes, whether as proposed prior to 18 January 2018 or as revised that day. Essex took this procedural course because, as it saw the matter, the consequence would be that the court would give its own reasoned judgment on what I shall call "the substantive question": whether the 2007 EW regulations must be read as meaning that the nomination requirement does not apply.
- I discuss Essex's procedural course, and other procedural aspects, in section E below. In the present section I deal with the substantive question. I bear in mind that it is not an "issue". There is no issue as to the answer to the substantive question, for the Secretary of State agreed with Ms Elmes's answer, and Essex did not object to it. In what follows I give my reasons why, for my part, I agree with Ms Elmes's answer. For that purpose section D2 below identifies what was common ground in Brewster. Section D3 turns to what was in dispute in Brewster, and summarises the reasoning of the Supreme Court when resolving that dispute. Section D4 explains the approach that this court must adopt when considering the impact of a Northern Irish decision such as Brewster. Section D5 examines Essex's July 2017 position. Section D6 examines the August 2017 adverse opinion. Section D7 sets out my conclusions on the substantive question.
D2 What was common ground in Brewster
- The judgment of the Supreme Court in Brewster was given by Lord Kerr JSC, with whom Lady Hale DPSC, Lord Wilson JSC, Lord Reed JSC and Lord Dyson agreed. Paragraphs 44 to 47 of the judgment identified what I shall call "the Brewster express areas of agreement":
The areas of agreement
44 It is not in dispute that the denial of a survivor's pension falls within the ambit of A1P1 which 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."
45 Although the right to a pension might not be regarded, in conventional terms, as a possession, it is well settled that A1P1 protects "possessions", which can be either "existing possessions" or assets, including claims, in respect of which the applicant can argue that he or she has at least a "legitimate expectation" of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property: see Kopecký v Slovakia (2004) 41 EHRR 43 , para 35 and J A Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 45 , para 61.
46 It is likewise not in dispute that the claimant, as a person who was in a cohabiting relationship other than a marriage or a civil partnership at the time of her partner's death, enjoyed a relevant status for the purposes of article 14 of the Convention: In re G (Adoption Unmarried Couple)  AC 173 , paras 8, 107 and 132. Article 14 provides that the enjoyment of the rights and freedoms 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".
47 It was also agreed that a surviving unmarried partner falling within regulation 25(6)(b) of the 2009 Regulations is in an analogous situation to a surviving married partner or civil partner. The single area of dispute between the parties, therefore, is whether the interference with the claimant's right to property has been "objectively justified": see para 13 of Higgins LJ's judgment.
- It seems to me plain that there were other matters which were implicitly common ground. I shall refer to them as "the implicit areas of agreement". Among them was the test for proportionality described in paragraph 66 of the judgment:
66 The test for the proportionality of interference with a Convention right or, as in this case, the claimed justification for a difference in treatment, is now well settled: see the judgments of Lord Wilson JSC in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening)  1 AC 621, para 45, Lord Sumption JSC in Bank Mellat v HM Treasury (No 2)  AC 700, para 20 and Lord Reed JSC in Bank Mellat, at para 74. As Lord Reed JSC said:
"it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter …"
- I identify another implicit area of agreement in section D6 below.
D3 Brewster: Supreme Court reasoning on disputed matters
- The headnote at  1 WLR 519ff conveniently captures, in paragraphs (1) and (2), the key elements of legal principle laid down by the Supreme Court and the key conclusions of the Supreme Court when applying relevant legal principles. I set them out below with additional subparagraph lettering inserted for convenience.
- As to legal principle, key propositions of law adopted or decided by the Supreme Court in Brewster were:
[a] the duty of the state under article 14 was to secure equal enjoyment of Convention rights without discrimination on grounds of status unless there was objective justification for denying equal enjoyment of the underlying right;
[b] such obligation called for a more proactive role than where the state was merely enjoined to respect a Convention right;
[c] the court was to assess the claimed justification objectively but without substituting its own view for that of the decision-maker, particularly where it was the legislature making a choice within the field of socio-economic policy, which would normally be respected unless manifestly without reasonable foundation;
[d] by contrast, where the question of the impact of a particular measure on social and economic matters had not been addressed by the government department responsible for a particular policy choice, or no real policy choice was at stake, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision was diminished;
[e] similarly, a more scrupulous examination might be called for where the impugned measure was sought to be defended on grounds that had not been present to the decision-maker at the time the decision was made, although even retrospective judgments, if made within the sphere of expertise of the decision-maker and bona fide, were worthy of respect;
[f] any claimed justification for a measure as having the administrative advantages of a brightline rule would require evidence to that effect; and
[g] any question as to the weight to be given to the claimant having a status which had been chosen rather than being an immutable characteristic would depend on the context of the particular case.
- Applying those propositions of law, key conclusions of the Supreme Court were:
(2) … that applying those principles to the impugned measure:
[a] the fact that the claimant was relying on a status of choice rather than some immutable characteristic did not require a more benevolent review of the imposition of the nomination requirement in circumstances where the essential purpose of the change in the scheme brought about by the [2009 NI regulations] had been to remove the difference of treatment between cohabitees and married or civil partners;
[b] neither did the actual or claimed reasons for the requirement impel a more benevolent review, since there was nothing in the contemporaneous documentation which suggested that socio-economic factors had been in play at the time that the decision to include the nomination procedure was made, the post-hoc attempts to justify its retention on socio-economic grounds, or as providing an administratively beneficial brightline rule, had been unsupported by evidence, and the attempt to justify retention as adding evidential value added nothing to the evidential hurdle which a surviving cohabitee had to face in establishing, under regulation 25(6) that there had been a genuine and subsisting relationship;
[c] even on an approach of deferring to the department's decision unless it was manifestly without reasonable foundation, the requirement could not stand, since it failed the test for proportionality, there being no rational connection between the objective of extending survivors' pensions to unmarried couples and the imposition of the nomination requirement, and so could not be justified; and
[d] accordingly, the claimant was entitled to a survivor's pension under the scheme.
D4 Approach of this court to Northern Irish decisions
- In this section I consider the approach that this court would take to Brewster if there were an issue as to the true meaning of the 2007 EW regulations.
- Rules concerning judicial precedent do not require this court to follow a decision on a point of law by a higher court where the point of law has been conceded or agreed. Nor do they require this court to accept a proposition of law which was not part of the essential reasoning of a higher court. Subject to those principles, the Court of Appeal in England & Wales has said that a decision of the Court of Appeal in Northern Ireland must be accorded the greatest respect and, where the decision relates to a statutory requirement which applied or was the same as that which applied in England and Wales, ought to be followed in order to prevent the undesirable situation arising of identically worded legislation being applied in inconsistent ways: see Deane v Secretary of State for Work and Pensions  EWCA Civ 699,  1 WLR 743.
- Brewster is a Northern Irish decision not merely of the Court of Appeal in Northern Ireland but of the UK Supreme Court exercising its Northern Irish jurisdiction. I have no hesitation in concluding that the propositions of law set out in section D3 above are binding on this court.
- It is then the task of this court to apply those legal propositions to the facts. I agree with Mr Buttler's oral submission that as regards the attitude of the Secretary of State in relation to the 2007 EW regulations there is a factual element that is different from the position concerning the 2009 NI regulations. This factual element is that, as noted in section B8 above, in relation to the 2007 EW regulations the Secretary of State has not suggested that there was any good reason for the nomination requirement, and has in fact said that the nomination requirement was unnecessary.
- I also agree with Mr Buttler that this factual difference strengthens the case for holding that the nomination requirement must be disapplied. No one has suggested that there is any other relevant factual difference, and I am not aware of any. In these circumstances, subject to the unlikely possibility of there being a new legal point which was overlooked in Brewster, I have no doubt that Ms Elmes is right to say that the nomination requirement in the 2007 EW regulations must be disapplied.
D5 Essex's July 2017 position
- In section B4.5 above I have set out Essex's July 2017 position. Essex advanced an assertion that, while there was no bar to Ms Elmes's entitlement to a survivor's pension, it could not pay such a pension to Ms Elmes because payment would be "unauthorised" and thus expose both Essex and Ms Elmes to penalties.
- I accept that Essex genuinely had a concern in this regard. I also accept that the cautious response in HMRC's email of 8 September 2017 (see section B4.8 above) did little to assuage that concern. Nevertheless it is difficult to understand how either Essex or HMRC could have thought that such an assertion had any arguable basis. The Human Rights Act 1998 has been on the statute book for nearly 20 years. It is now elementary that:
(1) by section 3(1) of that Act, there is what may be called a "read down where possible" obligation: primary legislation and subordinate legislation must, so far as it is possible to do so, be read and given effect in a way that is compatible with Convention rights;
(2) section 3(2) identifies an important distinction between primary legislation (including Acts of Parliament) and subordinate legislation (for example, the 2008 scheme); moreover in the case of incompatible subordinate legislation section 6 identifies a second important distinction depending upon the cause of the incompatibility;
(3) as to the first important distinction, section 3(2)(b) contains a general carve-out: the "read down where possible" obligation does not affect the validity, continuing operation or enforcement of any incompatible primary legislation;
(4) in the case of subordinate legislation, however, the carve-out is narrower: section 3(2)(c) states that, disregarding any possibility of revocation, the "read down where possible" obligation does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if primary legislation prevents removal of the incompatibility;
(5) thus the mere fact that the wording of secondary legislation (such as the 2007 EW regulations) is incompatible with relevant Convention rights does not of itself give a means of escape from the "read down where possible" obligation: that obligation will only cease to have effect on secondary legislation if primary legislation prevents removal of the incompatibility;
(6) as to the second important distinction, while section 6(1) contains an "incompatible act bar" making it unlawful for a public authority to act in a way which is incompatible with a Convention right, section 6(2) contains two specific carve-outs, so that the "incompatible act bar" does not apply:
(a) if, as the result of primary legislation, the authority could not have acted differently, or
(b) if the authority was acting so as to give effect to or enforce provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with Convention rights;
(7) thus in the case of acts done under subordinate legislation:
(a) the carve-out from the "incompatible act bar" will operate only if primary legislation prevented the authority from acting differently or if the acts done gave effect to or enforced primary legislation which cannot be read or given effect in a way which is compatible with Convention rights;
(b) the consequence is that, subject only to the carve-outs described above, the effect of the 1998 Act is not merely to impose a "read down where possible obligation", but also to disapply provisions of subordinate legislation which cannot be read or given effect in a way which is compatible with Convention rights.
- In Brewster the Supreme Court held that in materially identical Northern Irish subordinate legislation the nomination requirement infringed Article 14 and Protocol 1 of the Convention. It was not argued that any relevant carve-out applied. The result was set out in paragraph 68 of the Supreme Court's judgment: the nomination requirement was disapplied, and Ms Brewster was entitled to receive a survivor's pension under the scheme.
- In these circumstances, Essex's concern about penalties was a legal nonsense. If the Supreme Court's reasoning in Brewster applies, then in the regulations governing the 2008 scheme the law of England & Wales disapplies the nomination requirement. Essex accepts that the Supreme Court's reasoning in Brewster applies. It necessarily follows that payments to Ms Elmes are authorised by the 2008 scheme, and HMRC can have no entitlement to treat them as unauthorised. A concern that payments to Ms Elmes would not be permitted by regulations governing the 2008 scheme, and thus would lead to imposition of penalties by HMRC, could only arise if the Supreme Court reasoning in Brewster for some reason (for example, because a "carve-out" existed) did not apply to regulations governing the 2008 scheme. In that event, however, Essex would necessarily not be entitled to make payments to Ms Elmes at all, and would not be writing to DPG in the terms set out in numbered paragraphs 1 to 3 of the letter of 14 July 2017.
- I observe, in relation to HMRC's email of 8 September 2017, that:
(1) the first sentence effectively repeats Essex's fundamental misunderstanding of Brewster and the 1998 Act;
(2) more generally, the email makes no reference to, and presumably was sent in ignorance of, the April 2017 Treasury advice.
- What appears to have happened is that neither Essex, nor the officials of HMRC that Essex was dealing with, were aware of the clear advice given by HM Treasury in April 2017. Had they been aware of that advice they would in all probability have followed it by recognising that Ms Elmes was in the same position as Ms Brewster and that the Supreme Court's decision applied. I infer that:
(1) unaware of the Treasury April 2017 advice, Essex became confused as to the legal position; and
(2) those involved at HMRC, similarly unaware of that advice, but aware that these proceedings were under way, cautiously declined to offer an opinion pending the outcome of these proceedings.
D6 The August 2017 adverse opinion
- I have set out relevant parts of the August 2017 adverse opinion in section B7.6 above. It did not dispute any of the Brewster express areas of agreement. Nor did it dispute the implicitly agreed test for proportionality. Nor did it challenge the Supreme Court's reasoning on matters in dispute. Instead, it relied on a new reason for saying that, despite the decision in Brewster, refusal to pay a survivor's pension would not be unlawful. This new reason was that s 6(2)(b) of the 1998 Act applied.
- As noted in section D5 above, under s 6(2)(b) there is a "carve out", and an administering authority would have a defence to a claim for payment, where the authority, by refusing to pay, was acting so as to give effect to or enforce provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with Convention rights. If there were a sound argument that s 6(2)(b) applied, then it seems to me that Brewster would not be a bar to such an argument, for the simple reason that no such argument was considered in Brewster. It is plain from the Supreme Court's judgment that the argument did not arise for consideration because it fell within an implicit area of agreement. All concerned in that case proceeded on the basis that a conclusion that the nomination requirement infringed relevant provisions of the Convention would necessarily lead to a decision that the nomination requirement must be disapplied. No one in that case, at any level, suggested that s 6(2)(b), or any other "carve-out", might apply.
- It seems unlikely that a "carve-out" of this kind might have existed but was not spotted in Brewster, or that there is some feature of the law in England & Wales which gives rise to a "carve-out" here that does not arise in Northern Ireland. Nevertheless, applying the principles set out in section D4 above, I must examine the suggestion in the telephone attendance note that such a "carve-out" existed. Accordingly I must consider whether, under s 6(2)(b), a refusal to pay a survivor's pension in the absence of a nomination would give effect to or enforce provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with Convention rights. However a curious feature of the telephone attendance note is that it does not identify any such provision of primary legislation.
- As pointed out in Mr Sharland's note (see section B8 above) the 2007 EW regulations were made by the Secretary of State under ss 7 and 12 of the Superannuation Act 1972. Section 7 provides:
(1) The Secretary of State may by regulations make provision with respect to the pensions, allowances or gratuities which, subject to the fulfilment of such requirements and conditions as may be prescribed by the regulations, are to be, or may be, paid to or in respect of such persons, or classes of persons, as may be so prescribed, being—
(a) persons, or classes of persons, employed in local government service; and
(b) other persons, or classes of persons, for whom it is appropriate, in the opinion of the Secretary of State, to provide pensions, allowances or gratuities under the regulations.
(1A) Subsection (1) is subject to sections 18 and 19 of the Public Service Pensions Act 2013 (restrictions on benefits provided under existing schemes).
(2) Without prejudice to the generality of subsection (1) above, regulations under this section—
(a) may include all or any of the provisions referred to in Schedule 3 to this Act; and
(b) may make different provision as respects different classes of persons and different circumstances.
(3) Notwithstanding anything in the Pensions (Increase) Act 1971, regulations under this section may provide—
(a) that increases under that Act of such of the pensions, allowances or gratuities payable under the regulations as may be prescribed by the regulations, or such part of those increases as may be so prescribed, shall be paid out of such of the superannuation funds established under the regulations as the regulations may provide; and
(b) that the cost of those increases or of that part thereof, as the case may be, shall be defrayed by contributions from the persons to whom any services in respect of which the pensions, allowances or gratuities are or may become payable were or are being rendered or by such of those persons as may be so prescribed;
and any provisions of the said Act of 1971, or of regulations made under section 5 thereof, relating to liability for the cost of increases under that Act of pensions, allowances or gratuities payable under the regulations shall have effect subject to the provisions of any regulations made by virtue of this subsection and for the time being in force.
(4) Without prejudice to subsection (2) above, regulations made by virtue of subsection (3) above may make different provision as respects different classes of pensions, allowances or gratuities.
(5) Before making any regulations under this section the Secretary of State shall consult with—
(a) such associations of local authorities as appear to him to be concerned;
(b) any local authority with whom consultation appears to him to be desirable; and
(c) such representatives of other persons likely to be affected by the proposed regulations as appear to him to be appropriate.
- Section 12 provides:
(1) Any regulations made under section 7, 8(2) , 9 or 10 of this Act may be framed so as to have effect as from a date earlier than the making of the regulations.
(2) Subject to subsection (4) below, any regulations made under section 7, 9 or 10 of this Act may be framed—
(a) so as to apply in relation to the pensions which are being paid or may become payable under the regulations to or in respect of persons who, having served in an employment or office service in which qualifies persons to participate in the benefits for which the regulations provide, have ceased to serve therein (whether or not they have subsequently recommenced any such service) or died before the regulations come into operation; or
(b) so as to require or authorise the payment of pensions to or in respect of such persons.
(3) Subsection (2) above shall apply in relation to regulations under the said section 7, being regulations made by virtue of section 8(3) of this Act, as if for the first two references to those regulations in paragraph (a) there were substituted references to the local Act scheme affected by the regulations.
(4) No provision shall be made by any regulations by virtue of subsection (2) above unless any person who is placed in a worse position than he would have been in if the provision had not applied in relation to any pension which is being paid or may become payable to him is by the regulations given an opportunity to elect that the provision shall not so apply in relation to that pension except as provided by subsection (4A) below.
(4A) If, at the coming into force of the provision mentioned in subsection (4) above, a person who makes such an election as is mentioned in that subsection is serving in an employment or office to which the regulations governing the pension apply, or if he subsequently recommences service in such an employment or office, then—
(a) the election shall have effect in relation to the pension only to the extent that it accrues or has accrued—
(i) by virtue of periods of service rendered before the cessation referred to in subsection (2) above (or, if there has been more than one such cessation, the last of them before the coming into force of the provision in question); or
(ii) by virtue of contributions paid in respect of any such periods of service; and
(b) in determining entitlement to, or the amount of, the pension to that extent, he shall (without prejudice to the application of this subsection) be treated as if he had never recommended service in such an employment or office at any time after the cessation referred to in paragraph (a) above;
and the provision in question shall apply accordingly.
(5) In the foregoing provisions of this section "pension" includes allowance and gratuity.
(6) Regulations made under section 7, 8, 9 or 10 of this Act shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
- I agree with Mr Sharland that ss 7 and 12 of the Superannuation Act 1972 are broad enabling powers, and say nothing to suggest that the 1972 Act requires that a nomination requirement must be fulfilled as a condition of payment of a survivor's pension to a surviving cohabiting partner. No one has identified any other relevant primary legislation.
- In these circumstances, putting on one side whether the court needed to be informed of the August 2017 adverse opinion (see section F below), I am satisfied that the GLD was right to conclude that the analysis in the August 2017 adverse opinion was not compelling.
D7 The substantive question: conclusion
- For the reasons given above I agree with Ms Elmes that, after taking account of the 1998 Act, and in the light of the Supreme Court judgment in Brewster, the 2007 EW regulations must be read as meaning that the nomination requirement does not apply.
E. Procedural questions
E1 Procedural questions: introduction
- The course of events in the present case gave rise to a number of procedural questions. In this section I deal with such of them as appear to me to call for resolution or for comment. I begin in section E2 below with Ms Elmes's first potential issue: ought the parties to have adopted the procedure for agreed final orders set out in paragraph 17 of CPR PD54A? In section E3 below I discuss Ms Elmes's objections to a reasoned judgment: the lack of "precedent" value, the general principle that a court should not give judgment on theoretical issues, and the question whether a declaration should be granted in the absence of a contradictor. Section E4 deals with questions concerning the potential role of interested parties and interveners. In section F I discuss the need to ensure in public law cases that the court is made aware of anything which may affect a decision whether to grant a discretionary remedy, and other practical aspects.
E2 The procedure for agreed final orders
- The provisions of paragraph 17 of CPR PD54A are set out in section B7.2 above, where I summarise the submissions in Ms Elmes's skeleton argument on this point. Those submissions seem to me to assume that paragraph 17 of CPR PD54A, in cases where a proposed final order is agreed, precludes a party from saying that the proposed final order nevertheless merits consideration at an oral hearing.
- I do not read paragraph 17 of CPR PD54A as precluding anything of the kind. What paragraph 17 of CPR PD54A ensures is that if the parties wish the court to make a final order by consent then such an order will be made without a hearing only if the procedure in paragraph 17 of CPR PD54A is adopted. In this way the important safeguards identified by Mrs Justice Lang in Gacal cannot be circumvented. Paragraph 17.3 of CPR PD54A recognises the importance of those safeguards by providing, in cases where the court is not satisfied on a paper consideration that the order should be made, for a hearing to be fixed.
- It seems to me that in general, if any party to a proposed consent order identifies a good reason for that order to be the subject of a hearing, then the interests of justice will be served by issuing an application notice for such a hearing, accompanied by:
(1) a joint note from the applicant party or parties which sets out why it is that they consider a hearing desirable, along with the respondent parties' observations and any reply by the applicant parties;
(2) any additional evidence which may assist the court when considering whether to make the proposed consent order; and
(3) an agreed time estimate along with proposed directions to ensure that all relevant matters are put before the court well in advance of the hearing, that sequential skeleton arguments will be filed once that has been done, and that a hearing bundle and authorities bundle will be available to the judge for pre-reading.
- In the ordinary course the court will then be able to approve the proposed directions and fix a hearing. An application notice of this kind could be issued before the permission stage, and should in any event be issued as soon as it is clear that the parties have agreed on a consent order but one or more of them considers it desirable for that order to be considered at a hearing.
- It seems to me that, by definition, in such a case it would not be appropriate for the procedure under CPR 54.18 to be invoked. CPR 54.18 enables the parties, if they all agree on such a course, to invite the court to decide the claim without a hearing. I add that if one or more parties consider that a disposal under paragraph 17 of CPR PD54A is inappropriate, then it is unlikely that it would be appropriate for the court to decide the claim without a hearing.
- As noted in section B7.2 above, Ms Elmes's skeleton argument identified reasons why she contended that Essex's two objectives did not, on analysis, provide good reasons for asking the court to issue a reasoned judgment. Essex's first objective was to guard against the HMRC risk. In effect, Ms Elmes's response was that an order could not be made without a proper contradictor and would not in any event guard against the HMRC risk. To my mind, however, the reasons advanced by Ms Elmes in response to Essex's first objective might be thought to apply just as much to an order made on paper as they would to an order made at a hearing. Far from indicating that a paper consideration would suffice, those reasons militated in favour of there being a hearing. I consider those reasons in section E3 below.
- Essex's second objective was that there should be a judgment setting a precedent which would be of value to Essex and other local authorities. Ms Elmes's response was that such a judgment would have no value. To my mind, in the circumstances of the present case, the question whether there should be such a judgment itself merited oral argument. In the event, as noted in section B8 above, at the hearing Mr Buttler acknowledged that considerations in relation to the rule of law and legal certainty may make such a judgment desirable.
- For all these reasons I consider that Essex was right to contend that the procedure in paragraph 17 of CPR PD54A was not appropriate in the present case. I add that if that procedure had been followed, I think it likely that the court would have concluded that the case fell within paragraph 17.3 and should be the subject of a hearing.
E3 Objections to a reasoned judgment
E3.1 Objections to a reasoned judgment: introduction
- It seems to me, for reasons given in section D5 above, that there was no obstacle to Essex paying a survivor's pension to Ms Elmes as soon as the true effect of the Brewster decision was appreciated. It was not necessary for this purpose for the court to make an order quashing the 4 April 2013 decision, although I would have been willing to do this if Ms Elmes had asked me to do so. In the event, while a request for such an order appeared in the original claim form (see section B1.1 above), at the hearing no quashing order was sought. What was sought at the hearing, and granted by me, were the incompatibility declaration, the entitlement declaration, and the payment order.
- However Ms Elmes's skeleton argument, and Mr Buttler in oral submissions, had advanced objections to the effect that these remedies could, in the circumstances of the present case, only be granted by way of a consent order, and could not be granted in conjunction with an oral judgment.
- My first conclusion after hearing oral argument was that it would not have been appropriate to grant those remedies in a consent order without an explanatory judgment. The reason is that if the objections as to what could be done when giving a judgment were right then it seems to me that I would not be able to grant those same remedies pursuant to a consent order. The parties cannot simply agree to bypass what principles of public law require. By contrast, if the objections were wrong, then I would need to give a judgment explaining why they were wrong. For the reasons given below, the conclusion I reached after considering the objections at the hearing was that I was entitled to grant, and ought to grant, the incompatibility declaration, the entitlement declaration, and the payment order in conjunction with a judgment.
- The objections were advanced under three heads. The first was that the remedies required the court to give judgment on theoretical issues. The second was that the court could only give a judgment after hearing argument from a contradictor. The third was that a judgment would have no "precedent" value. It is convenient to take this head of objection first, and I deal with it in section E3.2 below. I then turn to deal with the first and second heads of objection in sections E3.3 and E3.4 respectively.
E3.2 Lack of "precedent" value
- The essential point made here was the court could not preclude a future litigant from advancing a respectable argument, in circumstances where this court had not given consideration to that argument: see section B7.2 above.
- The February 2018 note identified a possible concern in relation to what it described as "a declaration that will be or may be in rem". By this I understood the note to refer to declarations on legal questions intended to be binding on all. In that regard the note cited R. (AS) v LB of Croydon  EWHC 2091 (Admin) at paragraphs 45 to 63. For my part, however, I doubt whether an assertion that a particular type of declaration is "in rem" has any real value in the present context. Among other dangers, it runs the risk of importing concepts and principles which arise in a property law context and which cannot be assumed to have relevance in the context of public law. In any event I agree with the observation by the author of chapter 30 of Auburn, Moffett and Sharland Judicial Review: Principles and Procedure, who comments at para 30.20 that this passage must be treated with caution, as it is inconsistent with comments of Ward LJ in A v Croydon LBC  EWCA Civ 1445 at para 88 and Blake J in NA v London Brough of Croydon  EWHC 2357 (Admin) at para 43.
- I add that the February 2018 note suggested that the decision of the Privy Council in Pattni v Ali  UKPC 51,  2 AC 85 may have a bearing on this question. To my mind, however, that case is concerned with an aspect of property law and simply has no bearing on public law.
- Returning to the proposition that it will be open to future litigants to rely upon arguments not considered by this court, I readily accept that proposition. Moreover this court is a first instance court for present purposes. Other courts of co-ordinate jurisdiction are not bound to follow decisions of this court, although as a matter of practice such courts will generally do so unless satisfied that this court's decision is clearly wrong.
- The practical value of the precedent which is established by the present judgment and the remedies granted by this court is not, in my view, to be measured by reference to the extent to which any obligation may arise for other courts to follow this decision. The practical value arises from the circumstances referred to by Essex and described in paragraphs 8 to 11 of the November 2017 Advisory Board paper. In summary, in the aftermath of Brewster:
(1) even the Advisory Board appeared to have overlooked the DCLG August 2017 letter;
(2) there was an awareness that one administering authority had received the August 2017 adverse opinion and of what it said; and
(3) the "unhelpful" position was that some administering authorities had made payments in the spirit of the Brewster judgment whereas others had decided not to do so until the 2007 EW regulations were amended to remove the nomination requirement between 2008 and 2014.
- In these circumstances there seemed to me to be strong evidence of a real need to grant remedies which would set out the legal position with clarity, and which could be cited by legal advisers as a precedent justifying the payment of survivor's pensions to those in Ms Elmes's position. The declarations made in the present case fulfil those purposes. They are not intended to be binding on all: that is not necessary. Nor is it necessary for me to discuss whether a declaration, as opposed to a constitutive remedy such as a quashing order, can be binding on all.
E3.3 Theoretical issues
- As to giving judgment on theoretical issues, I acknowledge that there is no longer any issue: Essex admits the nomination requirement must be disapplied, it admits that Ms Elmes is entitled to a survivor's pension, and it admits that it must pay Ms Elmes the arrears of that pension with interest. However at the start of these proceedings Essex accepted none of these things. That being so, it is the regular practice of the court to grant an order for payment of sums due and to grant a declaration of entitlement to future sums. The granting of those two remedies brings an end to the previous dispute by recording an agreed outcome. Taking such a course does not give rise to any of the concerns which arise about the dangers of granting theoretical remedies.
- As to the grant of the incompatibility declaration, I am inclined to think that it too is doing no more than recording the agreed outcome of what had previously been in dispute. Even if it goes beyond this, however, as explained in paragraph 18-042 of De Smith's Judicial Review, 8th edition (2018) para 18-042, this court can give a declaration which amounts to an advisory opinion on a theoretical question, so long as that question needs to be answered for a real practical purpose. In considering whether to do so, the court must have strongly in mind the warnings given, for example by Baroness Hale DPSC in R (Smith) v Oxfordshire Assistant Deputy Coroner  UKSC 29,  1 AC 1 at paras 132 to 135, that there are dangers of delay if the court accepts an invitation to decide more than it is necessary to decide, and that propositions going wider than the case itself requires may have persuasive value only.
- In the present case it would have been open to me to say that I would simply grant an order which can conveniently be called a "short form order". Such an order would have been along the lines requested in the original claim form and would have, in substance, done no more than quash the 4 April 2013 decision for the reasons set out in section D above. I am acutely conscious that my decision to grant the incompatibility declaration sought by Ms Elmes at the hearing may have made it necessary to examine procedural questions which might not otherwise have arisen, and that in some instances (although not as regards Ms Elmes) payment by administering authorities of survivor's pensions may have been delayed pending production of this judgment. As explained in section B4 below, however, the delay would be likely to have arisen in any event. What happened was that when preparing my judgment I had concerns which would have arisen even if I had made a short form order. These concerns, identified after the hearing was over, were that questions arose as to whether potential interested parties had been overlooked, and as to what should be done in that regard.
- I am satisfied that in the present case there was a real practical purpose in the grant of the incompatibility declaration. It lay in the fact that there were many others in Ms Elmes's position who had not, prior to the making of my order, been awarded a survivor's pension when they should have been, and in my conclusion that, as set out in section E3.2 above, there was a strong need to grant remedies which would clearly set out the legal position.
E3.4 The suggested need for a "contradictor"
- This aspect of Ms Elmes's objections focused on the grant of the two declarations. Ms Elmes's skeleton argument (see section B7.2 above) rightly drew attention to the observations of Lord Dunedin in Russian Commercial Industrial Bank v British Bank for Foreign Trade Ltd  2 AC 438 at p. 448 about the need for an appropriate contradictor, and also to the observations of Toulson LJ in R (A) v Lewisham Youth Court  1 WLR 34 at para 4.
- In addition, the February 2018 note drew my attention to the commentary in Civil Procedure 2018 at para 40.20.3. The commentary there describes a "rule of practice" under which a declaration:
… ought not to be made on default of pleading, or on admissions of counsel, or by consent, but only if the court is satisfied by evidence … where relief is to be granted without trial … and it is necessary to make clear on what footing the relief is to be granted, the right course is not to make a declaration "but to state that the relief shall be such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation".
- At the end of para 40.20.3 the commentary draws attention to the procedure under paragraph 17 of CPR PD54A. It adds:
… Where a draft agreed final order includes a declaration the rule of practice referred to above may persuade the court that the order should not be made without a hearing.
- These passages seem to me to demonstrate the reverse of the position advanced in Ms Elmes's skeleton argument. Nor, despite a suggestion to the contrary in the February 2018 note, can it be said that the commentary indicates that paragraph 17 of CPR PD54A "applies equally where a declaratory judgment is required". Far from a declaration being appropriate in a consent order and inappropriate when sought in conjunction with a reasoned judgment, the passage at the end of the commentary suggests that the court might conclude that a declaration should not be granted in a consent order made without a hearing.
- The commentary is silent on the question whether, at a hearing in a judicial review case, a declaration may appropriately be made by consent or whether instead the "rule of practice" described earlier in para 40.20.3 should be followed. In that regard I agree with an observation in the February 2018 note, citing Richards J in Islington LBC v Camp  LGR 58 at p. 66, that it is not uncommon for claims for judicial review to go uncontested (for example, respondent magistrates are rarely represented at a hearing).
- The general power to make declarations now derives from section 31(2) of the Senior Courts Act 1981. This, building on predecessor provisions, enables the court to grant a declaration when it is just and convenient to do so, having regard to various matters including the nature of the person and bodies against whom a remedy may be granted and the circumstances of the case. That power is reiterated in CPR 40.20 and CPR 54.3.
- It is appropriate to recognise that in modern times the declaration has proved to be a particularly apt remedy in public law where respondents can generally be expected to comply with the court's decision, and that time and again it has demonstrated its usefulness as a flexible remedy, capable of adaptation to new circumstances: see McCloskey, Family Reunification and Judicial Review Remedies in UTIAC (2017) 22 Judicial Review 42 at paragraphs 18 to 29. Thus in R v Secretary of State for the Environment ex p Birmingham City Council (Mann J, unreported, 15 April 1986) the Secretary of State conceded, and a declaration was made, that determinations in a Rate Support Grant Report were invalid. A deliberate decision was taken by the Secretary of State to concede that a declaration should be made, on the footing that a quashing order would not be made. The applicant did not seek a quashing order, for good reason: had the Report been quashed it would have been impossible to maintain the payments of subventions to local authorities without emergency legislation. The declaration provided important background for the consideration by Parliament of retroactive legislation: see the Rate Support Grants Act 1986.
- The decision in R (C) v First-tier Tribunal (see sections B7.4 and B8 above) also demonstrates the utility of grant of a declaration where this course was not opposed.
- A decision of my own, Human Fertilisation & Embryology Authority v Amicus Healthcare Ltd  EWHC 1092 (QB), provides a further example. Ms Evans, a patient at a fertility clinic, had failed in a claim here that stored embryos could lawfully be retained by the clinic without the consent of her former partner. She had applied to the European Court of Human Rights ("ECtHR"), and the relevant Chamber President had given an indication that the UK should take interim measures to preserve the embryos. An urgent application was made to the Queen's Bench Division for declarations which, it was said, would lead the clinic to continue to store the embryos, thus enabling the UK to comply with the Chamber President's indication. The parties proposed that three declarations should be made by consent in relation to:
(1) the lawfulness of the authority taking no action against the clinic pending determination of Ms Evans's application to the ECtHR;
(2) the lawfulness of a statement made by the Director of Public Prosecutions ("DPP") in a letter to the clinic giving an indication that it would not be appropriate to prosecute the clinic in relation to certain periods when it held the embryos in apparent contravention of a statutory prohibition; and
(3) the entitlement of the operators of the clinic to rely, as a matter of "substantive legitimate expectation", on any decision by the authority not to take regulatory action against the clinic pending determination of the human rights claim and on the DPP's indications in the letter sent to the clinic.
- I granted the first two declarations sought but refused the third. In my judgment, which was delivered orally at the conclusion of argument, I said:
19 Turning to the exercise of my discretion under CPR 40.20 [in relation to the first declaration sought], the court approaches declarations which are sought by consent with particular caution. It is strongly desirable before making a declaration to hear argument both for and against what is proposed. I conclude that in this case, however, the natural concern on the part of the clinic about continuing to act in contravention of its licence conditions makes it appropriate to take the exceptional course of granting a declaration without there being any argument to the contrary.
23 It is clear to me that [in relation to the second proposed declaration] the 1990 Act does not require that the DPP should prosecute for breach of every condition, even a statutory condition. The limited indication which the DPP has given in this case, in the letter of 3rd March this year, appears to me to fall within that which is permissible following the decision of the House of Lords in Pretty .
25 Turning to the exercise of my discretion under CPR 40.20, this declaration is appropriate for similar reasons to those which I have identified in relation to the first declaration.
27 As a matter of discretion under CPR 40.20, I decline to grant [the third proposed] declaration. I make it clear that I know of no reason why the clinic should not rely on what has been said by the DPP, or any decision on the part of the HFEA. However, whether, and in what circumstances, either of those bodies are fettered by what they say or do may give rise to a variety of issues. It may well be unlikely that such issues arise on what has happened to-date or will come into play in the light of future events. I consider, however, that the clinic can and should rely on its own legal advice as to the consequences of anything said or done. A declaration, whether as to there being a "substantive legitimate expectation", or as to the clinic being "entitled to rely", in my view, involves too many assumptions for a case where the matter has not been in contest.
- My judgment did not specifically refer to Lord Dunedin's observations in Russian Commercial Industrial Bank v British Bank for Foreign Trade Ltd . They were not cited by counsel. However I was familiar with them, and I had them specifically in mind when making the observations set out in paragraph 19 of my judgment.
- In the present case I take a similar approach. As with declarations by consent, I recognise that the court approaches with particular caution any proposal for declarations to be made in the absence of objection. I have firmly in mind that it is strongly desirable before making a declaration to hear argument both for and against what is proposed. I conclude that in this case, however, the practical need for the declarations, as identified above, is so great as to make it appropriate to take the exceptional course of granting a declaration without there being any argument to the contrary.
E4 The potential role of interested parties and interveners
- Under CPR 54.6 a claimant must state in the claim form the name and address of any person that the claimant considers to be an interested party. Under CPR 54.7 unless the court otherwise directs the claimant must, within 7 days after the date of issue of the claim form, serve the claim form on any person the claimant considers to be an interested party. Service of the claim form on the interested party then entitles the interested party to file an acknowledgement of service, and thereafter to participate in the judicial review.
- In addition, CPR 54.8(4)(a)(iii) requires every person filing an acknowledgment of service to state the name and address of any person considered by that person to be an interested party.
- The term "interested party" is defined in CPR 54.1(2)(f). It means:
any person (other than the claimant and defendant) who is directly affected by the claim.
- In R. v Liverpool City Council ex p Muldoon  1 WLR 1103 the House of Lords was concerned with identical wording in RSC Order 53 r5(3), the predecessor to CPR 54.1(2)(f). In that case two applicants had each sought judicial review of the refusal or failure of the council to determine their respective claims to housing benefit. The Secretary of State for Social Security, who was required by section 135 of the Social Security Administration Act 1992 and regulations made thereunder to reimburse up to 95% of local authorities' housing benefit qualifying expenditure, applied to the High Court for an order that he be joined as a respondent to both applications as a person "directly affected" by the decision within the meaning of RSC Order 53, r. 5(3). The judge dismissed the application and the Court of Appeal dismissed the Secretary of State's appeal. An appeal to the House of Lords was also dismissed. Lord Keith of Kinkel, with whom Lord Griffiths, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Cooke of Thorndon agreed, held that a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency. Applying that principle, Lord Keith said:
In the present case if the applications for judicial review are successful the Secretary of State will not have to pay housing benefit to the applicants either directly or through the agency of the local authority. What will happen is that up to 95 per cent. of the amount paid by the local authority to the applicants will be added to the subsidy paid by the Secretary of State to the local authority after the end of the financial year. The Secretary of State would certainly be affected by the decision, and it may be said that he would inevitably or necessarily be affected. But he would, in my opinion, be only indirectly affected, by reason of his collateral obligation to pay subsidy to the local authority.
- In section B9 above I have explained how I became concerned in the present case that questions arose whether Jessie and Jake, and possibly others, ought to have been named as interested parties. As also explained in that section I have now received the June 2018 note, dealing with those questions and with an additional question as to whether arrangements should be made for representation in that regard.
- Contrary to the unanimous view in the June 2018 note, I have no doubt that when the claim form was issued on 5 June 2013 both Jessie and Jake should have been named as interested parties. The reason is that, unless and until Essex took the discretionary decision recorded in paragraph 3 of the letter of 14 July 2017, success by Ms Elmes in her claim would directly and adversely affect the children in the present case by reducing the amount of their entitlement in two respects:
(1) the first respect concerns a loss of future entitlement: if Ms Elmes's claim had been held in June 2013 to be sound, then future payments to both children would be reduced by 25%;
(2) the second respect concerns both children's past benefits: they were both exposed to a risk that Essex would seek to recover as alleged "overpayments" 25% of payments made to them during the period 14 November 2011 onwards.
- Similarly in April 2017, when the acknowledgments of service were filed, I have no doubt that both Jessie and Jake should have been named as interested parties. At that stage success by Ms Elmes in her claim would directly and adversely affect Jessie in two respects and Jake in one respect:
(1) loss of future entitlement: if Ms Elmes's claim had been held in April 2017 to be sound, then future payments to Jessie would be reduced by 25%;
(2) past benefits: both Jessie and Jake were exposed to a risk that Essex would seek to recover as alleged "overpayments" 25% of payments made to them during the period 14 November 2011 onwards.
- The joint note relied on the fact that in Muldoon the phrase "directly affected" was given a narrow interpretation. As regards Jessie and Jake's position in June 2013 and April 2017, however, there was nothing indirect about their loss of future entitlement and exposure to a claim for repayment of past benefit. Those consequences flowed directly from the operation of regulation 28 of the 2007 EW regulations as set out in section C above. No intervention of any intermediate agency is required, nor can the losses identified above be described as merely collateral: they are direct consequences of Ms Elmes being entitled to a survivor's pension. The question raised by Ms Elmes's judicial review claim concerned the true meaning of provisions in the 2007 EW regulations governing entitlement to a survivor's pension. If those provisions meant what Ms Elmes said, then under those same regulations Jessie and Jake's entitlements were automatically reduced by 25% of what they would otherwise have received.
- This point did not arise in Brewster: Mr McMullen had no children. I add that it is nevertheless clear that the Supreme Court were aware of the potential loss to children if the nomination requirement were disapplied. This feature was noted by Higgins LJ at paras 15 and 38 of his judgment in the Court of Appeal of Northern Ireland.
- I agree with the June 2018 note, however, that there came a time when both Jessie and Jake ceased to be interested parties. Once Essex on 14 July 2017 communicated its decision that it would not reclaim overpayments from Jessie and Jake there ceased to be any real danger that they would be affected by success in Ms Elmes's judicial review.
- As regards others in Ms Elmes's position, and their children, I agree with the June 2018 note that they are not directly affected by the present litigation. There may be some children whose deceased parent was living with a cohabiting partner but had not lodged a nomination form. It may be that the decision in favour of Ms Elmes will lead to such children losing, for example, a proportion of future entitlements. That was the recommendation in paragraph 5.3 of the DCLG August 2017 letter. But this will not be the direct consequence of Ms Elmes's success in the present case: it will only arise if the relevant former cohabitor makes, or has made, their own claim.
- The Secretary of State has suggested, and I agree, that it is important to warn that if there are other claims which are underway, or which may be begun, then consideration will need to be given as to whether there may be children of the deceased member, and if so whether they should receive independent advice.
- In relation to the present case I do not consider that arrangements need to be made for the hearing to be re-opened. My view on that might be different in the very unlikely event that good reason were identified to think that there may be an argument, not identified in the course of the Brewster litigation, which could lead to the nomination requirement being upheld. If such an argument had been identified then it might have been appropriate to consider an application to intervene under CPR 54.17(1). Even then, however, the preferable course could well be to leave it to the administering authority, or an adversely affected child through a litigation friend, to advance the new point in proceedings brought specifically to obtain a ruling pertaining to that case. I stress, however, that in my view there is no real prospect that any such argument might be identified.
F. Keeping the court informed & other practical issues
- The final matter to deal with when reviewing what happened in the present case concerns important practical issues. Of vital importance is the need always to bear in mind in public law cases that where a remedy is discretionary the court needs to be informed of matters which may affect the exercise of its discretion. The reasons given by Lang J when stressing the importance of the court's supervisory role in relation to proposed consent orders in my view apply generally to discretionary orders made by the Administrative Court.
- I was dismayed to learn that both Essex and the Secretary of State had been aware for some weeks prior to the hearing that an adverse opinion existed, but either had given no consideration to informing the court of it or had considered it and dismissed it as not needing to be raised with the court. In circumstances where the court was being asked to make a declaration it was important that the court be informed of anything which might have a bearing on the court's decision whether to grant a public law discretionary remedy in that regard. I readily accept that GLD concluded that the analysis in the August 2017 adverse opinion was not compelling. But that did not mean that the court should not have the opportunity of considering whether it shared GLD's view.
- There are two further aspects which arise here. Both concern practical ways of potentially resolving problems which might otherwise have led the court to refuse to grant declarations. The first arises at the outset of Essex's concerns:
(1) The fear which drove Essex to refuse payment to Ms Elmes was a fear as to what HMRC would do.
(2) If that fear were to be resolved then detailed work needed to be done to identify exactly how it was that any problem with HMRC could arise in law.
(3) In the present case doing that detailed work would have demonstrated, for the reasons given in section D5 above, that once Ms Elmes's entitlement was established then it followed that payments to her would not be "unauthorised".
(4) If, however, a real problem were shown to exist then the stance taken in HMRC's 8 September email was unsatisfactory. It could have led the court, without the benefit of argument from HMRC, to reach a particular conclusion only to find that HMRC came up with a new argument which undermined that conclusion.
(5) The preferable course would be to devise some means, perhaps in the form of an old fashioned construction summons to be heard at the same time as the judicial review, by which HMRC would be participating with other parties in argument as to the true meaning of the 2007 EW regulations.
- The second practical aspect became a concern as Essex moved toward a stance where it did not propose to dispute Ms Elmes's contentions as to the true meaning of the 2007 EW regulations. Nonetheless Essex had a desire for a declaration which could act as a precedent for it and other administering authorities. In these circumstances:
(1) There was a high risk that that desire might be frustrated because of the lack of a contradictor: see section E3.4 above.
(2) Once Essex learnt of the August 2017 adverse opinion it seems to me that there was an opportunity to seek to counter that risk.
(3) The ideal course might have been to explore whether the legal team responsible for the August 2017 adverse opinion could be instructed to put their arguments before the court. If so, then the potential problems caused by lack of a contradictor would go away.
- A theme that emerges is the importance of regular and full communication between the legal team and the key staff of the client, staff who are at the coalface. They need to be asked at the outset, is there anyone who will be directly adversely affected if the judicial review claim succeeds? The legal team need to stress to those staff the importance which the court attaches to the duty of candour, and how vital it is to keep the legal team informed of any development, so that the legal team can consider not only how that development may affect the client's position, but also whether it may need to be raised with the other side or with the court.
- It is for the reasons given above that I made the order dated 18 January 2018 in the present case.