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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39 (03 February 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/39.html Cite as: [2009] EWCA Civ 39, [2009] ICR 762 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: Pensions Appeal Tribunal
Mr J Mesher
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE HOOPER
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Barbara Nan Ratcliffe |
Appellant |
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- and - |
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Secretary of State for Defence |
Respondent |
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Nathalie Lieven QC and Andrew Henshaw (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 11 February 2008 , 1 May 2008, 29 and 30 October 2008
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Crown Copyright ©
Lord Justice Hooper:
Introduction
The facts
"The relationship began in February 1976. From 1985 onwards it became an unbroken and true partnership and we were treated by all family and friends as though married.
From 1985 [K] provided considerable financial support. After September 2001 I was not working and lived as a dependent with him at our home in Hitchin where I cared for him and nursed him during the final stages of his cancer."
"It took the Veterans' Agency almost seven weeks to provide nothing more than the statutory information, when it had been made quite clear that time was of the essence. This is so far outside their standards of performance that it constitutes a breach of their duty to [K] and myself. Had the information been provided expeditiously, it would have been possible for us to marry."
The history of the claim
The value of the claim
The challenge - in outline
The legislative provisions
"(1) An unmarried dependant who lived as a spouse of a member of the armed forces whose death is due to service may be awarded a pension in accordance with the following provisions of this article.
(2) Where such an unmarried dependant who lived as a spouse has in her charge a child of the member and is in receipt of an allowance awarded in respect of that child under the following provisions of this Part of this Order, a pension may ... be paid to her until she ceases to have that child in her charge or to be in receipt of such allowance."
"(a) in relation to a member of the armed forces whose disablement is due to service before the commencement of the 1914 World War or after 30 September 1921, a person of the opposite sex wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, where the member is disabled, up to the date of any award under this Order in respect of his disablement and, where the award is reviewed, up to the date of review or, where the member is dead, up to the date of his death."
a) if the unmarried dependant was wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service until death; and
b) if the unmarried dependant has in her charge a child of the member.
Furthermore the pension payable to the unmarried dependant in these circumstances effectively continues only during the child's childhood. The origin of these provisions dates back to 1919, albeit that the scheme was, at that time, more generous in its definition of unmarried dependants.
"Benefits payable for the death of a member of the forces or a former member of the forces are:
(a) a survivor's guaranteed income payment payable until death to his surviving spouse, civil partner or his surviving adult dependant."
"A person is a surviving adult dependant in relation to a member or former member of the forces if, at the time of the member's death:
(a) the person and the member were cohabiting as partners in a substantial and exclusive relationship;
(b) the member leaves no surviving spouse or civil partner;
(c) the person and the member were not prevented from marrying or forming a civil partnership; and
(d) either the person was financially dependent on the member or they were financially interdependent."
"In deciding whether a relationship of a deceased member of the forces ("the deceased") and the claimant is a substantial relationship, the Secretary of State shall have regard to any evidence which the claimant considers demonstrates that the relationship is substantial and shall in particular have regard to the following examples of evidence which could, either alone or together, indicate that the relationship is substantial."
"(a) in relation to a member of the armed forces whose disablement is due to service ... a person of the opposite sex who is not married to, but who is wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, ... where the member is dead, up to the date of his death."
"in relation to a member of the armed forces whose disablement is due to service ... a person of the same sex who has not formed a civil partnership with, but is wholly or substantially maintained by, the member on a permanent basis throughout the period beginning 6 months prior to the commencement of his service and continuing ... where the member is dead, up to the date of his death ... ."
The Occupational Pension Scheme
The two schemes compared
The Convention
"The enjoyment of the rights and freedoms set forth in this 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."
"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."
Narrowing of the issues
i) as to the claim that the War Pensions scheme discriminates in favour of married partners as against unmarried partners, the position of married and unmarried partners is not analogous and, even if analogous, the difference in treatment is justified; and
ii) as to the claim that the War Pensions scheme discriminates in favour of unmarried partners who satisfy the very narrow criteria as against other unmarried partners, the difference in treatment is justified.
The test for determining whether there has been discrimination contrary to Article 14
"For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised." (P.M. v. United Kingdom [2005] ECHR 504; Application no. 6638/03, 19 July 2005, para. 26)
"The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations ... Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised." (Burden v. United Kingdom [2008] ECHR 357; Application no. 13378/05 29 April 2008, para. 60)
"The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy." P.M. para. 26 and Burden, para. 60
20. In the present case the House is concerned with the interpretation and application of domestic legislation. In this context the domestic counterpart of a state's margin of appreciation is the discretionary area of judgment the court accords Parliament when reviewing legislation pursuant to its obligations under the Human Rights Act 1998. …
19. … Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights. The readiness of the court to depart from the view of the legislature depends upon the subject matter of the legislation and of the complaint. National housing policy is a field where the court will be less ready to intervene. Parliament has to hold a fair balance between the competing interests of tenants and landlords, taking into account broad issues of social and economic policy. But, even in such a field, where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified.
"36. … But none of these considerations [for following ECtHR decisions] can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all Member States, as it does when it says that the question is within the margin of appreciation.
37. In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch."
"48. … Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests."
"Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the 14th Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification … ."
16. There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.
17. There may be borderline cases in which it is not easy to allocate the ground of discrimination to one category or the other and, as I have observed, there are shifts in the values of society on these matters. Ghaidan v Godin-Mendoza [2004] 2 AC 557 recognised that discrimination on grounds of sexual orientation was now firmly in the first category. Discrimination on grounds of old age may be a contemporary example of a borderline case. But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy. …"
"25. … in deciding what expatriate pensioners should be paid, Parliament must be entitled to take into account competing claims on public funds. To say that the reason why expatriate pensioners are not paid the annual increases is to save money is true but only in a trivial sense: every decision not to spend more on something is to save money to reduce taxes or spend it on something else.
26. I think it is unfortunate that the argument for the Secretary of State placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad. It is unnecessary for the Secretary of State to try to justify the sums paid with such nice calculations. It distracts attention from the main argument. Once it is conceded, as Mr Blake accepts, that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the courts the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources."
"… in any particular area the decision-making power of this or that branch of government may be greater or smaller, and where the power is possessed by the legislature or executive, the role of the courts to constrain its exercise may correspondingly be smaller or greater. In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest. I conceive this approach to be wholly in line with our responsibilities under the Human Rights Act 1998. In general terms I think it reflects a recurrent theme of the Strasbourg jurisprudence, the search for a fair balance between the demands of the general interest of the community and the protection of individual rights: see Sporrong v Sweden (1982)5 EHRR 35."
"37. The Court of Appeal [which had allowed the claim] seems to have treated the decision of Parliament in 1999 to abolish WP from 9 April 2001 as an acknowledgement that there could have been no possible reason for the legislature not taking such a step at that time and therefore as demonstrating that it should have taken the same step at an earlier date. But in my opinion the courts are not in a position to say that the 1999 decision was inescapably right or that a different decision, whether earlier or later, would have been inescapably wrong. It was a matter for legislative judgment."
"32. … Once it is accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment is no longer justified becomes a social and political question within the competence of Parliament."
If, for example, the legislation had given benefits to white people only and there was not (and it is difficult to think that there could be) any justification for differentiating black people, it may well be that the courts would insist on retrospective payments to cure the discrimination.
Are married partners and unmarried partners in an analogous situation?
"The Court considers that the promotion of marriage, by way of limited benefits for surviving spouses cannot be said to exceed the margin of appreciation afforded to the respondent Government."
61. The applicants claim to be in a relevantly similar or analogous position to co-habiting married and Civil Partnership Act couples for the purposes of inheritance tax. The Government, however, argue that there is no true analogy because the applicants are connected by birth rather than by a decision to enter into a formal relationship recognised by law.
62. The Grand Chamber commences by remarking that the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom's Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members … .The fact that the applicants have chosen to live together all their adult lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the two types of relationship.
63 Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences … . In Shackell …, the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors' benefits, since 'marriage remains an institution which is widely accepted as conferring a particular status on those who enter it'. The Grand Chamber considers that this view still holds true.
64. Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple now also has the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage (see paragraphs 16-18 above).
65. As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of co-habitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, cited above), the absence of such a legally binding agreement between the applicants renders their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view is unaffected by the fact that, as noted in paragraph 26 above, Member States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.
66. In conclusion, therefore, the Grand Chamber considers that the applicants, as co-habiting sisters, cannot be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1."
"25. Nevertheless, as the very helpful analysis of the Strasbourg case law on article 14, carried out on behalf of Mr AL, shows, in only a handful of cases has the Court found that the persons with whom the complainant wishes to compare himself are not in a relevantly similar or analogous position (around 4.5%). This bears out the observation of Professor David Feldman, in Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 144, quoted by Lord Walker in the Carson case, at para 65:
'The way the court approaches it is not to look for identity of position between different cases, but to ask whether the applicant and the people who are treated differently are in 'analogous' situations. This will to some extent depend on whether there is an objective and reasonable justification for the difference in treatment, which overlaps with the questions about the acceptability of the ground and the justifiability of the difference in treatment. This is why, as van Dijk and van Hoof observe, … 'in most instances of the Strasbourg case law . . . the comparability test is glossed over, and the emphasis is (almost) completely on the justification test'.
A recent exception, Burden v United Kingdom, app no 13378/05, 29 April 2008, is instructive. Two sisters, who had lived together for many years, complained that when one of them died, the survivor would be required to pay inheritance tax on their home, whereas a surviving spouse or civil partner would not. A Chamber of the Strasbourg Court found, by four votes to three, that the difference in treatment was justified. A Grand Chamber found, by fifteen votes to two, that the siblings were not in an analogous situation to spouses or civil partners, first because consanguinity and affinity are different kinds of relationship, and secondly because of the legal consequences which the latter brings. But Judges Bratza and Björgvinsson, who concurred in the result, would have preferred the approach of the Chamber; and the two dissenting judges thought that the two sorts of couple were in an analogous situation. This suggests that, unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification." (Underlining added)
93. The Court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of or within wedlock can be regarded as compatible with the Convention (see Mazurek v. France, no. 34406/97, § 49, ECHR 2000-II, and Camp and Bourimi v. the Netherlands, no. 28369/95, §§ 37-38, ECHR 2000-X). The same is true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage-based relationship. The Court discerns no such reason in the instant case.
"18. … one looks in vain to find justification for the difference in treatment of homosexual and heterosexual couples. Such a difference in treatment can be justified only if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Here, the difference in treatment falls at the first hurdle: the absence of a legitimate aim. None has been suggested by the First Secretary of State, and none is apparent. … ."
" 99. … By what is claimed to be a process of interpretation of an existing statute framed in gender specific terms, and enacted at a time when homosexual relationships were not recognised by law, it is proposed to treat persons of the same sex living together as if they were living together as husband and wife and then to treat such persons as if they were lawfully married. …"
"27. The Court notes the Government's arguments that this case is not about paternity/maternity but the married status of the parents. It is true that any person, not married to the mother of the child concerned, would not qualify for tax deductions for maintenance payments made. That said however, it is nonetheless the case that the applicant may claim to be treated differently as an unmarried father than a married father, though both are parents of the child to be maintained and under obligations to pay maintenance. This is not a situation where the applicant seeks to compare himself to a couple living in a subsisting marriage (see, for example, Lindsay v. the United Kingdom, cited above, where married and unmarried couples, taxed differently, were not found in be in a comparable position), but one where the married father has separated or divorced and is also living apart from the child of the family. Other persons, not parents, are not covered by the child support provisions and are generally in a different situation. This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in an relevantly similar position."
"55. … All we would be saying is that they were to be treated, for the purposes of eligibility for adoption, as if they were married to each other."
"101 … It is difficult to see how this could survive a challenge under article 14 of the European Convention, which takes a particularly firm line against discrimination on the ground of sexual orientation.
"107. … It cannot seriously be argued that a difference in treatment between married and unmarried couples, in relation to the right to respect for their family life, is not covered by article 14."
"133. Shackell and Burden were decisions in the context of taxation and social benefits, where the right to which the alleged discrimination related was the right to protection of property provided under article 1 of Protocol No. 1 to the Convention. The present appeal arises in the different context of the right to respect for private and family life, in relation to which it is clear that distinctions between married and unmarried persons may be unjustifiably discriminatory. Lord Hoffmann has in paragraph 9 cited paragraph 28 of the Court's ruling in P. M. v. United Kingdom (Application no. 6638/03) (2005) 18 BHRC 668, which demonstrates that differences in marital status may, even in the context of article 1 of Protocol No. 1, be unjustifiably discriminatory. In that case, the unjustified discrimination consisted of unequal tax treatment of payments made by an unmarried father to support the child of a former relationship, compared with similar payments made by a father who had been married and was now separated or divorced. The Court in paragraph 28 also noted that 'as a general rule unmarried fathers, who have established family life with their children, can claim equal rights of contact and custody with married fathers (see Sahin v. Germany (2001) 36 EHRR 765, para 94'. Sahin was a case like the present where the alleged discrimination consisted of lack of appropriate respect for the applicant's family life; the Court concluded that there had been a breach of article 8 read with 14. In my opinion, articles 8 and 14 are also engaged in the present case."
Justification
"It seems to us a clear and understandable proposition that a Government, with its notionally bottomless purse, cannot be permitted to justify a social policy which is obviously discriminatory, on grounds of costs."
"In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest."
LORD JUSTICE WALL
LORD JUSTICE WARD