B e f o r e :
THE HONOURABLE MR JUSTICE MOSES
| || |
THOMAS JOHN HOOPER
| ||LESLIE WILLIAM WITHEY|
| ||FRANK NAYLOR|
| ||ANDREW WALKER MARTIN|| |
| ||- and -|
| ||SECRETARY OF STATE FOR WORK AND PENSIONS||Defendant|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr. James Goudie QC and Mr. Jason Coppel (instructed by Loosemores for Mr. Hooper)
Mr. Geoffrey Cox and Mr. Edward Risso-Gill (instructed by Royds Treadwell for Messrs. Withey, Naylor and Martin)
Mr. Philip Sales and Miss Jemima Stratford (instructed by the Solicitor to the Department of Work and Pensions for the Secretary of State)
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Mr Justice Moses:
- These four claimants are widowers. Their wives, sadly, died before the Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9.4.2001. Had they been women they would have become entitled to one or more forms of benefit payable to widows pursuant to the Social Security Contributions and Benefits Act 1992. In issue are three types of widow’s benefit: Widow’s Payment, Widowed Mother’s Allowance and Widow’s Pension. These are test cases, since there are a large number of potential claimants whose entitlement will depend upon the outcome of this case.
- At the heart of the case lies an issue of discrimination on the ground of gender and the effect of the Human Rights Act 1998 upon the powers of the court to rectify such discrimination. The Government has reached a friendly settlement of claims brought by widowers who made claims to benefits other than Widow’s Pension in Strasbourg. The claimants assert that their claims should also have been settled.
- Widow’s Payment and Widowed Mother’s Allowance are at issue in the claims of Messrs. Hooper, Withey and Martin. Widow’s Payment and Widow’s Pension are at issue in the case of Mr. Naylor. Mr. Hooper’s first wife died on 17.12.1986 leaving two dependent children. His second wife died on 27 March 1997, leaving three dependent children. Mr. Withey’s wife died on 26 November 1996, leaving two dependent children. Mr. Martin’s wife died on 11 September 2000, leaving two dependent children and Mr. Naylor’s wife died on 2 July 1995.
- Sections 36-38 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act “) provided for the payment of Widow’s Payment, Widowed Mother’s Allowance and Widow’s Pension in respect of the death of a husband before 9 April 2001. The relevant provisions are set out in the Annexe to this judgment. The provisions of the Social Security Act 1986 are relevant to Mr. Hooper’s claim in respect of the death of his first wife but since, for reasons given later, he has no valid claim I shall not set out those provisions.
- Section 36 of the 1992 Act provided for a Widow’s Payment, a lump sum payment of £1000 subject to conditions which included restriction to those under pensionable age and payment by the late husband of National Insurance contributions.
- Section 37 provided for a Widowed Mother’s Allowance, weekly payments, for women with dependent children (entitled to child benefit) subject to similar conditions.
- Section 38 provided for Widow’s Pension, weekly payments, to those over 45 but under the age of 65 subject to similar conditions.
- These provisions were replaced by the 1999 Act, the relevant provisions of which are set out in the Annexe. These provisions introduced a system of survivor’s benefits, Bereavement Payment, Widowed Parent’s Allowance and Bereavement Allowance payable to both men and women, but at the cost of a more limited form of benefit. But it preserved the distinction between widows and widowers for those already in receipt of widows’ benefits. It was not made retrospective.
- Section 54 (inserting a new Section 36 into the 1999 Act) replaced Widow’s Payment with Bereavement Payment set at £2000 for those whose spouses died on or after 9 April 2001. A deceased spouse must have satisfied the contribution condition.
- Section 55 (inserting a new Section 39A) provides for Widowed Parent’s Allowance for spouses with dependent children. The contribution condition must have been satisfied.
- Section 55 also (by the insertion of a new Section 39B) replaces Widow’s Pension by a Bereavement Allowance payable only for 52 weeks to those over 45 but under pensionable age.
- Existing rights are preserved by Section 55 (inserting Section 36A). Widows whose husbands died before 9 April 2001 will continue to receive Widowed Mother’s Allowance and Widow’s Pension. But by Section 36A(2) the new Widowed Parent’s Allowance is given to men whose wives died before 9 April 2001.
- The following issues have arisen:-
(1) Does the difference in treatment between widows and widowers in relation to Widow’s Payment and Widow’s Pension constitute discrimination under Article 14 read with Article 8 or Article 1 of the First Protocol of the European Convention on Human Rights? The defendant accepts that there was discrimination under Article 14 read with Article 8 in relation to Widowed Mother’s Allowance.
(2) Were the claimants “victims” within the meaning of section 7 of the HRA 1998?
(3) Is the difference in treatment between widows and widowers in relation to Widow’s Pension objectively justified? (Mr. Naylor’s claim).
(4) Is the Government to be afforded a reasonable period for reform (the so-called Walden point)?
(5) Was there discrimination within the meaning of Article 14 between widowers who brought claims, which were settled in Strasbourg and the widower claimants in the instant case?
(6) Was a refusal to settle these claims irrational or unfair?
(7) Can the provisions of the 1992 Act be interpreted pursuant to Section 3 of the HRA 1998 to entitle both widows and widowers to benefits?
(8) To what extent does the HRA1998 have retrospective effect?
(9) Did the defendant act unlawfully in refusing to make extra-statutory payments, contrary to Section 6(1) of the HRA 1998?
FIRST ISSUE: IS THERE DISCRIMINATION CONTRARY TO ARTICLE 14 READ WITH ARTICLE 8 IN RELATION TO WIDOW’S PAYMENT AND WIDOW’S PENSION?
- Article 14 prohibits discrimination only in relation to the enjoyment of rights and freedoms enshrined in the Convention. Claimants can only rely upon a breach of Article 14 if they can bring themselves within the ambit of a substantive provision of the Convention. Article 14 provides:-
“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”.
- The claimants contend that Widow’s Payments and Widow’s Pension fall within the ambit of Article 8(1). Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety and the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
- It is important to recall that the claimants need not show that the failure to pay Widow’s Payments and Widow’s Pension to widowers discloses a violation of Article 8(1). The test is whether claims to such payments fall within the ambit of Article 8(1) (see e.g. Abdulaziz Cabales and Balkandali v U.K.  7 EHRR 471 paragraph 71 page 499).
- The test as to whether the claims fall within the ambit of a substantive provision has a significant corollary. Article 14 provides protection against discrimination, not only in respect of those rights which a state is obliged by the Convention to guarantee, but also in respect of benefits which it chooses to provide which fall within the scope of a substantive article. This principle is demonstrated by Abdulaziz itself. Alien husbands with a right to remain in the United Kingdom were permitted to be joined by their wives, but the same permission was not granted to women with a right to remain. There is no obligation upon the United Kingdom under the Convention to allow wives of husbands who had a right to remain to join their husbands, but once that privilege was granted to husbands, the Court concluded that the differential treatment in relation to wives fell within the ambit of Article 8(1) and was discriminatory. The Court said:
“There remains a more general argument advanced by the Government, in that the United Kingdom was not in violation of Article 14 by reason of the fact that it acted more generously in some respects….than the Convention required. The Court cannot accept this argument. It would point out that Article 14 is concerned with the avoidance of discrimination in the enjoyment of the Convention rights insofar as requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 includes, in general, cases where a personal group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.” (see paragraph 82).
- There was a dispute between the parties as to the test appropriate for determining whether the claimed enjoyment of a right fell within the ambit of Article 8. The defendant drew a distinction between cases where the State prevented the enjoyment of rights under Article 8, by taking something away, and those cases, such as the instant cases, where the complaint was directed against a failure to provide a positive benefit. In cases concerned with a failure to provide positive benefits, the defendant contended that it was necessary to establish a direct and immediate link between the positive advantage sought by the claimants and their private or family life.
- This proposition was based upon the decision of the Court in Botta v Italy  26 EHRR 241. That case concerned a complaint by a disabled person of interference with his right to respect for his private life, contrary to Article 8, and a violation of Article 14. The applicant complained of a failure by Italy to adopt measures necessary to rectify failure by concessionaires of private beaches to provide access for disabled persons. The Court drew a distinction between lack of action and
“Positive obligations inherent in effective respect for private or family life”. (see paragraph 33, page 257).
- In respect of such positive obligations, it said:-
“The court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life”. (paragraph 34).
- It concluded that there was no violation of Article 8 because:-
“In the instant case, however, the right asserted by Botta, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns inter-personal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the state was urged to take in order to make good the omissions of the private bathing establishments in the applicant’s private life”. (paragraph 35, page 258).
- Further, the court concluded that there was no violation of Article 14 because facts did not fall within the ambit of Article 8.
- It is noteworthy that, whilst acknowledging that the applicant had to show no more than that the facts of the case fell within the ambit of Article 8, the Court’s conclusion as to violation of Article 8 led to its conclusion that the failure to establish a direct and immediate link between the failure to provide access and the applicant’s private life itself provided the basis for saying that the facts did not fall within the ambit of Article 8. (see paragraph 39).
- However, it is important to appreciate that in Botta the Court was concerned with the applicant’s assertion that the state was under a positive obligation to provide disabled access. It accepted that some positive obligations were “inherent” in effective respect for private or family life; the source of such positive obligations was to be found in the direct and immediate link between the measures sought and private or family life. But the Court was not concerned in Botta with cases where the State did accord favourable treatment, without any obligation to do so, to one group, but failed to do so to another on grounds which amounted to discrimination.
- In my view, it is important to distinguish between those cases where a claimant contends that a positive benefit should be conferred and cases where the State has already chosen to confer benefits without any obligation to do so. Examples of such cases are to be found in the Belgian Linguistic case  1 EHRR 252 (provision of state education without obligation under the Convention) and Abdulaziz itself. The court in Botta did not purport to qualify the principle in Abdulaziz (cited above at paragraph 82) that discrimination may occur where favourable treatment already afforded to one group is refused to another, even though the State is under no obligation to provide that favourable treatment under the Convention. Botta concerned only those cases in which no favourable treatment was afforded to any group.
- I conclude that there is no warrant for requiring the claimants to establish a direct and immediate link with the enjoyment of rights under Article 8 in cases where the state has chosen to confer some benefits upon one group and not upon another. The principle in Botta is limited to those cases where no benefits have been provided at all and the claimant asserts that the state is under an obligation to provide them in order to protect the rights enshrined under Article 8. The test of ascertaining whether there is a “direct and immediate link” is directed towards establishing whether there is any positive obligation inherent in Article 8, not whether existing positive benefits afforded to one group fall within the ambit of Article 8.
- It is, however, necessary to establish that the positive benefits in fact provided to one group do themselves fall within the ambit of Article 8. In most cases whether the test of a direct and immediate link is applied or not, the result will be the same.
- In the instant cases, the defendant contends that the payments in issue are made to those whose family life has ceased. Widow’s Payments are paid to all widows whether they have children or not. Such payments are to be distinguished from Widowed Mother’s Allowance, payable only to those with dependent children. A widow is only entitled to a Widow’s Pension when she does not have any dependent children. It is provided to widows in their individual capacity. Thus the payments are not made so as to foster family life, but rather paid once family life has, tragically, ceased.
- The defendant sought to draw an analogy with the complaint of an absentee father that the assessment of his maintenance payments by the CSA was at such a high level, that he was unable to visit his children as frequently as he wished, contrary to Article 8 (Logan v UK  86 D&R 74). The Commission ruled the complaint inadmissible. It recorded the Government’s submission that the CSA is intended to protect family life and ruled:-
“that the relevant legislation, insofar as it seemed to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life”. (see page 81).
- Further, it concluded that facts in relation to the applicant’s income and expenses did not disclose any lack of respect for his rights under Article 8. It is clear to me that the Commission uses the word ‘affect’ to mean ‘interfere’. No question as to whether the assessment of maintenance fell within the ambit of Article 8 was relevant. It would, as it seems to me, have been impossible to contend that the assessment of maintenance did not fall within the ambit of Article 8 since, as the Government itself submitted, maintenance is intended to protect family life. I do not find the case of assistance. But I do accept that if Widow’s Payments and Widow’s Pension can fairly be regarded as benefits which are of no consequence to a family relationship, they may fall outwith the ambit of Article 8. It is a material factor that they are conferred on those who no longer have a family, providing support to them as individuals, but, in my judgment, that is not determinative.
- In my view, the availability of pecuniary support afforded by Widow’s Payment and Widow’s Pension does have a significant effect on the relationship of a family prior to the death of the spouse. They form a significant part of a family’s plans for a secure future. The Government itself emphasised the importance of the provision of bereavement benefits in making such plans when it advertised its proposals for new bereavement benefits:-
“From 9 April 2001, there will be new bereavement benefits for husbands and wives under retirement age. Widows and widowers claim a tax-free £2,000 payment….of course the last thing you want to think about is the death of your loved one. But it makes sense to understand how the new bereavement benefits will affect you and see how it can be built into your pension and life insurance plan. By seeking advice now, you can plan for a more secure future”.
- Thus, albeit in the context of the changed proposals designed to apply to both widowers and widows, the Government acknowledged the importance of these benefits in the context of family financial planning. Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse.
- There is further support for the proposition that financial planning for the future falls within the scope of family life. In Marckx v Belgium  2 EHRR 330, the mother (Paula Marckx) complained as to the limitation on her capacity to bequeath property to her illegitimate child. Such limitations fell within the ambit of Article 8 because they inhibited the illegitimate child’s integration into its family (see paragraph 31, page 342). The Court found a violation of both Article 8 and Article 14, taken in conjunction with Article 8. It is true that this case concerned a disposition in contemplation of death during the course of family life and not payments after the death of a spouse. But the case is of significance in demonstrating the importance of financial arrangements made as part of the enjoyment of the rights protected by Article 8.
- Moreover, Widow’s Payments and Widow’s Pensions form part of a congeries of provisions, all of which are designed to provide support to a surviving spouse at different stages of her life. Widow’s Payments under Section 36 are one-off payments made immediately on bereavement. Widowed Mother’s Allowances are paid whilst she looks after dependent children and Widow’s Pension payable in the longer term between the ages of 45-65 when she has finished bringing up her children. Viewed as part of a package, the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband.
- Accordingly, for those reasons I conclude that the failure to make Widow’s Payment and Widow’s Pension available to a surviving widower falls within the ambit of Article 8(1). Thus Article 14 is itself engaged.
FIRST ISSUE: DOES REFUSAL TO PROVIDE WIDOW’S PAYMENTS AND WIDOW’S PENSIONS FALL WITHIN ARTICLE 1 OF THE FIRST PROTOCOL?
- Since I have already concluded that the claims fall within the ambit of Article 8, it is strictly unnecessary for me to consider whether they also fall within the ambit of Article 1 of the First Protocol. However, should my conclusions as to Article 8 be wrong, it may be helpful to identify the issues and my conclusions in relation to Article 1 of the First Protocol to provide a framework for subsequent debate. Article 1 of the First Protocol provides:-
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should 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 paragraph shall not, however, in any way impair the right of the 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”.
- In order to fall within the ambit of Article 1 of the First Protocol, the claimants must establish that their complaints relate to their possessions. The Article:-
“applies only to a person’s existing possessions and does not guarantee the right to acquire possessions”. (see Marckx para 50, page 350)).”
- According to the defendant, the issue turns on whether the claimants’ deceased spouses paid contributions to the underlying National Insurance scheme. Absent such contributions the complaints do not concern possessions within the meaning of Article 1 of the First Protocol.
- Both sides relied upon Gaygusuz v Austria  23 EHRR 365 in support of their rival contentions. In that case a Turkish National was refused emergency assistance on the grounds that he was not an Austrian national. The Commission’s opinion supports the proposition that it was necessary for the complainant to have made contributions to bring the benefits within the ambit of Article 1 of the First Protocol:-
“The Commission notes that the Social Welfare Benefit the applicant was claiming, which the Austrian authorities refused him on the ground that he was not Austrian, formed part of the benefits to which persons who have contributed to the relevant fund are, in general, entitled if they comply with the statutory conditions. The Commission considers that, as the obligation to pay ‘taxes or other contributions’ falls within the field of application of Article 1 of Protocol No.1, the ensuing benefits also fall within the field of application of that provision. Accordingly, Article 14 is also applicable”. (see paragraph 47, page 376).
- The Court concluded:-
“39. ……. entitlement to (emergency assistance) is therefore linked to the payment of contributions to the unemployment insurance fund, which is a pre-condition for the payment of unemployment benefit. It follows that there is no entitlement to emergency assistance if such contributions have not been made.
40. In the instant case, it has not been argued that the applicant did not satisfy that condition; a refusal to grant him emergency assistance was based exclusively on the fact that he did not have Austrian Nationality...
41. The court considers that the right to emergency assistance – insofar as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No.1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay “taxes or other contributions”.”
- Paragraph 41 proved to be the centre of the debate. The claimants relied upon the Court’s use of the adverb ‘solely’; the Court thereby accepted that it was not necessary to rely upon contributions to the fund to bring the case within the application of Article 1 of the First Protocol. It was enough to establish a ‘pecuniary right’. If the making of contributions to a fund was essential to the application of Article 1 then the first sentence of paragraph 41 was otiose.
- The claimants relied, in addition, upon the decision of the Court as to admissibility in Domalewski v Poland (Application No. 34610/97). A former police officer complained of discrimination in being divested of veteran status, which had provided him with financial benefits over and above his normal pension. It observed in a passage relating to Article 6 that the divestment of his veteran status was:-
“decisive of his pecuniary rights, in particular the entitlement to the ‘veteran benefit’, i.e. a specific sum of money”. (see page 5)
“…the court observes that the applicant’s complaint is not limited to the question of whether or not Polish law operated discriminatorily but also relates to the loss of financial benefits attached to ‘veteran status’ which, as the court has found already, are pecuniary rights. The court therefore considers that the complaint falls to be examined under Article 1 of Protocol No.1 read together with Article 14 of the Convention”. (see mutatis mutandis Gaygusuz v Austrial judgment, paragraphs 39 to 41). (page 6).
The Court continued:-
“…The applicant lost the special and privileged 'veteran' status, which had entitled him to an extra allowance in addition to his normal pension…, and some other benefits…the applicant did, however, retain all the rights attaching to his ordinary pension under the general social insurance system. Consequently the applicant’s pecuniary rights stemming from the contributions paid into his pension scheme remain the same.
In these circumstances, the court does not consider that the applicant’s right to derive benefits from the social insurance scheme was infringed in a manner contrary to Article 1 of Protocol No.1 especially as the loss of veteran status did not result in the essence of his pension rights being impaired”. (see page 7).
- Domalewski is consistent with the proposition that in order to establish a possession within Article 1 of the First Protocol, it is necessary to establish a pecuniary right based upon contributions paid into the relevant scheme. It appears that there was no infringement of Article 1 of the First Protocol because the pecuniary benefits the retired Polish officer sought, did not stem from his contributions. He retained a normal pension, which did stem from those contributions.
- In Walden v Liechtenstein (Application No.33916/96) decided in the following year, the Court recalled that:-
“Payment of contributions to a social security fund may create a property right protected by Article 1 of Protocol No.1”. (see page 6)
It then referred to paragraph 41 of the Gaygusuz. judgment, which I have already cited. But this was a case where the husband complainant had made contributions and does not assist in determining whether the Court regarded the payment of such contributions as necessary to bring the case within the ambit of Article 1. One month later (in April 2000), the Court considered the entitlement to widow’s benefits of Joanna Schackell, whose partner, whom she had never married, had died. (See Shackell v United Kingdom (Application No. 45851/99)). In that case her partner had made full contributions to the fund and the Court assumed that:-
“The right to widow’s benefits may be said to be a pecuniary right for the purposes of Article 1 of the First Protocol”. (see page 4).
- The Court declared the application inadmissible on the basis that there was a distinction between married and unmarried cohabitees. In any event, discrimination between two such groups was justified.
- Finally, I should refer to the decision of the Commission in Coke & Others v UK (Application No. 38696/97 decision of 9 September 1988). In that case one group (Group A) of retired officers complained that under the Armed Forces Pension Scheme in the future their wives would either not be eligible for any service pension at all or only up to a restricted amount. The Commission ruled that the officers themselves would never be directly or indirectly affected by the legislation and could not claim on behalf of their wives (see paragraph 1). The other groups were of widows whose claims were ruled inadmissible because they themselves made no contribution to the pension scheme. On that ground, relying upon Gaygusuz, the Commission ruled that there had been no interference with their rights under Article 1 of the First Protocol (see paragraph 2 and 3). Coke provides no support for the claimants’ contentions.
- I am satisfied that the Court’s jurisprudence does support the defendant’s submission that these claims fall outwith the ambit of Article 1 of the First Protocol. In order to establish that the benefits in issue are their possessions, the claimants must establish a pecuniary right based upon their contributions. Absent such contributions, they have no possession within the meaning of Article 1 of the First Protocol. There is no hint, in any of the cases that the Court intended to depart from the fundamental principle that to come within the ambit of Article 1 of the First Protocol, a property right must be established. The making of compulsory contribution to a fund may create such a property right.
- I acknowledge that Gaygusuz provides no clear lead. If contributions are necessary, what is the point of Paragraph 41? If they are unnecessary, the adverb ‘solely’ adds nothing. In the end, I am driven to my conclusion by the impact of the word “possession” in Article 1.
- The explanation for the court’s ruling in paragraph 41 of Gaygusuz (q.v. supra) lies in the context of the arguments advanced by the Austrian Government in that case. The Government asserted that entitlement to emergency assistance did not result automatically from the payment of contributions, but rather it was an emergency payment granted by the State to people in need. It had argued before the Commission that the applicant was disentitled for other reasons to emergency assistance because his application for an invalidity pension had been rejected (see paragraph 44 in the opinion of the Commission at page 376). The Austrian Government, was, therefore, asserting that there were other reasons why he was refused such assistance, apart from his nationality. The first sentence in paragraph 41 seems to me to flow from the other arguments advanced by the Austrian Government. Having rejected those arguments, the Court concluded that entitlement to emergency assistance arose not solely because of the link between such entitlement and the obligation to pay taxes or other contributions, but also because a proper view of the domestic legislation revealed that the applicant qualified for emergency assistance for reasons which were additional to the fact that he had paid contributions to the fund.
- Gaygusuz is of no assistance to the claimants in the instant case. A deceased widow’s entitlement to benefits depends upon the contributions of the deceased husband. (See Section 36(1)(b) and Section 38(1)(a) of the 1992 Act). A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse. He thus has no entitlement and consequently no possession within the meaning of Article 1 of the First Protocol.
- Nor can a widower complain on the ground that his wife has suffered discrimination or represent her (see Coke v UK at paragraph 1, cited above). In this respect the defendant sought to rely upon the court’s decision as to admissibility in Owens v United Kingdom (Application No. 61036/00, decision of 7 June 2001). In Owens the applicant complained that he was refused Widow’s Payment and Widowed Mother’s Allowance because he was not a woman. The Court declared the applications inadmissible because one of the claims was out of time and in relation to a second claim, the applicant was not a victim because he had made no claim to such benefits within the relevant period. A woman would not have been entitled to such benefits if she had not made a claim. The applicant also sought to complain about discrimination suffered by his late wife in respect of the refusal to confer widow’s benefits on him. The Court said:
“This aspect of the claim does not raise any issues separate to those raised in respect of the discrimination alleged to have been suffered by the applicant himself. The Court thus concludes that it would not be in the interests of justice to grant the applicant permission to represent his deceased wife in this connection”. (see page 6).
- I do not think that, in those circumstances, Owens provides any support in relation to this issue to the defendant. Since the applications were out of time and no claim had been made, it made no difference whether the applicant was asserting his rights on his own behalf or on behalf of his late wife. However, I am satisfied that the claimants in these cases must found their complaints upon their own possessions. Absent any entitlement stemming from the contributions of their deceased wives, they have no entitlement and their claims do not fall within the ambit of Article 1 of the First Protocol
SECOND ISSUE: CLAIMS FOR BENEFIT AND THE VICTIM REQUIREMENT
- All four claims raised the issue as to the form a claim for benefit must take in order that the claimants may satisfy the requirement that they are “victims” within the meaning of section 7 of the Human Rights Act 1998. The point is important not just in relation to these claimants but also in the cases of the other potential claimants, the result of which depends upon the outcome of these cases.
- The defendant contends that in order to qualify as victims the claimants must have made claims in writing within the time specified under the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968, as amended by S.I. 1997/793). Regulation 19 provides:
(2) “The prescribed time for claiming the benefits specified in paragraph (3) is three months beginning any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.
(3) The benefits to which paragraph (2) applies are…….. (g) “widow’s benefit”.
- Widow’s benefits are identified as Widow’s Payment, Widowed Mother’s Allowance and Widow’s Pension (see Section 20(1)(e) of the 1992 Act).
- The defendant has not pursued any suggestion that the claims must be in a prescribed form pursuant to Regulation 4 of the 1987 Regulations. But he does assert that a widow would have had to claim Widow’s Payment within three months of the death of her late husband and is only able to backdate any claim for Widowed Mother’s Allowance or Widow’s Pension by three months.
- By Section 7(1) of the Human Rights Act 1998:-
“A person who claims that a public authority has acted or proposes to act in a way which is made unlawful by Section 6(1) may:-
(a) bring proceedings against the authority under this Act in the appropriate Court or tribunal or
(b) rely on the Convention right or rights concerned in any legal proceedings,………………. but only if he is (or would be) a victim of the unlawful act.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purpose of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”
- The claimants contend that in order to qualify as a victim they need do no more than make clear their wish to claim benefits. There is no requirement to make a claim in writing. Since it was made clear to them that they would not qualify for widows’ benefits it is absurd to expect them to have to fill out forms or make written claims when they were aware that such claims would be rejected.
- In its decision as to admissibility in Cornwell (Application No. 36578/97), decision of 11.5.1999 (27 EHRR CD 62) the claimant made no claim to widows’ benefits until 7 February 1997. He contended that he was under no obligation to do so since it was plain he was not entitled to such benefits. The Court ruled that up to his claim on 7 February 1997:-
“The applicant cannot be said to have been directly affected by the discrimination of which he complains, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefits under domestic law.”
- There was some dispute as to whether in fact there was anything more than an oral claim on 7 February 1997. The defendant asserts there was, whereas the claimant contended that it was merely a telephone call to the Benefits Agency on his behalf. In Cornwell the Government accepted that there had been a claim from 7 February and the case was subsequently concluded on the basis of a friendly settlement.
- In Fielding (53134/99 decision of 7 June 2001) the Government accepted the admissibility of a claim to widows’ benefits on the basis of a telephone call to the Benefits Agency. In White v UK (5134/99 decision of 7 June 2001) the Court in declaring the application for widows’ benefits admissible stated:-
“As appears from the Cornwell decision itself, the precise form in which an applicant indicates his intention to claim benefits is not of importance, the central question being whether the applicant has made clear his wish to claim benefits. The Court finds that in the present case the applicant made clear such intention and that he can accordingly claim to be a victim of a violation of the Convention for the purposes of Article 34”. (see page 6)
- Earlier the Court had “noted” that the applicant had made clear his wish to claim widowers benefits in a form notifying the Social Security Office of the death of his wife (see page 5).
- In my view, and I suspect in the view of the European Court of Human Rights, the claimant must make his claim to benefits clear in writing. It seems to me that it would be impossible to expect any social welfare system to work sensibly unless a clear claim is made in writing. Such a system cannot work without some clarity and certainty. It would be an unnecessary waste of time and resources were there to be disputes arising from assertions of oral claims. It is plain that the Court rejected any suggestion that the denial of entitlement to widower’s benefits relieved a claimant of the responsibility to make a written claim.
- Furthermore the claim must be made at the time appropriate to widows’ claims. Widower claimants cannot expect to be in a better position than widows. Again, an anticipated rejection does not relieve a claimant of the requirement to make his claim at the time appropriate to widows’ benefits.
- The consequences of my ruling in relation to the individual claimants are:-
(1) In relation to Mr. Hooper there is a dispute as to the time when he wrote letters of claim. Letters, which he asserts he sent, have not been discovered. But I see no reason for doubting his assertions. It is plain that he was making written claims at least by July 1997 but it is not clear to me that he made a written claim within three months of the death of his second wife on 27 March 1997. He is a victim in respect of Widowed Mother’s Allowance from three months prior to the date of his first written claim to benefits, subject to the arguments as to the retrospectivity of the HRA 1998
(2) Mr. Withey’s first claim was made orally in January or February 1997. His earliest full written claim, on Form BW1, was 12 October 2000. An earlier letter dated 5 June 2000 merely enquired about bereavement benefits under the new 1999 Act. But his solicitors did write a letter before action on 29 August 2000. In my judgment that qualifies as a written claim to benefits and accordingly he is not entitled to Widow’s Payment since the claim was more than three months after the death of his late wife on 26 November 1996. He is a victim in respect of Widowed Mother’s Allowance from three months prior to the letter dated 29 August 2000, subject to the HRA retrospectivity issue.
(3) Mr. Martin made a formal written claim on Form BW1 on 2 October 2000 having made an earlier telephone enquiry. That claim was within three months of his late wife’s death on 11 September 2000 so he does qualify as a victim in respect of both Widow’s Payment and Widowed Mother’s Allowance from 12 September 2000, subject to the retrospectivity point.
(4) Mr. Naylor qualifies as a victim in respect of Widows’ Pension from three months from the date of his written application on Form BW1 dated 14 September 2000, subject to the retrospectivity point. He is out of time to claim Widows’ Payment since his late wife died on 2 July 1995.
THIRD ISSUE: WIDOW’S PENSION
THE SECRETARY OF STATE’S ASSERTIONS OF OBJECTIVE JUSTIFICATION
- Only Mr. Naylor’s case raises the issue of Widow’s Pension. Although other claimants, in their written argument, raised the issue of future entitlement to Widow’s Pension, such a claim is hypothetical, since they are too young to claim it now and may never become entitled should they re-marry, (see Section 38(2) of the 1992 Act) or should they cohabit (see Section 38(3)(c)). Widow’s Pension is payable to those over the age of 45 but under the age of 65 (see Section 38(1)(a)).
- The Secretary of State’s arguments concerning objective justification are based on the evidence of Carol Freer, head of a section which has assumed responsibility for the policy on widows benefits. It is central to the Government’s arguments as to justification that the origin of payment of survivors’ benefits to widows and not to widowers stems from the different position of widows within the work force. Historically the loss of a husband meant, in most cases, the loss of the only breadwinner (see paragraph 4(1) of her statement). Successive reforms, which did not extend widows’ benefits to widowers, reflected a change in the position of women in society and in the workforce, a change which was only gradual. She says that those changes were least pronounced amongst older age groups (see paragraph 5). The most recent statutory changes, before the introduction of the new system in 1999, produced no equality between widows and widowers.
- However, in the period between 1996 to 1999, it was accepted that because more women were in work, the death of a husband had “a less dramatic financial effect” and the death of a wife could often mean a financial loss as great as that due to the death of a husband (see paragraph 15, Chapter 3 of the Consultation Document 1998). However, in relation to those whose spouses died after the 9th April 2001, the 1999 Act achieved equalisation by placing women in the same position as men had been in before the introduction of that Act. Apart from transitional provisions, to which I turn later, women, like men, will not be entitled to a survivor’s pension. Rather, a more limited form of bereavement allowance has been introduced which lasts for a maximum period of 52 weeks. This is to be contrasted with the position of surviving spouses with dependent children in respect of which both men and women will receive the Widowed Parent’s Allowance. Under the 1999 Act, a bereaved spouse is expected to seek to re-enter the labour market.
- Carol Freer draws attention to the reforms of bereavement benefits in the context of the Government’s general economic and social security policy. This policy is based on the belief that social security benefits should be targeted on those unable to support themselves through work and on assisting families with children. The maximum 52-week period for bereavement allowance for men and women and the grant of a Widowed Parent’s Allowance to those with dependent children reflect that policy (see paragraph 9).
- Carol Freer supports her assertion that the change of the position of women in society was gradual by reference to statistics showing the economic activity of women in comparison to men. In 1985, 67% of women and 88.1% of men were economically active. In 1995 70.9% of women and 85.2% of men were economically active and by 2000 72.9% of women and 84.8% of men. In 1985, 16.4% of women were economically inactive and 0.4% of men, whereas in 2000 12.7% of women fell within this category and 0.9% of men. Carol Freer concludes that during the past fifteen years, there has been a marked rise in the number of economically active women, but a correspondingly smaller fall in the number of women economically inactive (see paragraph 11). The statistics show that far more women work part-time than men. Of the 72.9% of women economically active in 2000, 44% work part-time, whilst the figure for men has risen from 4 to 9%. The most marked change in economic activity has occurred in relation to those mothers with children aged between 0 and 4. Statistics also show that women have been closing the gap in income level, although the change is less marked for women working part-time. Importantly, the statistics show that there has been a marked change in the position of younger married women, compared with older women over the past fifteen years.
- The legislative provisions, up to and including the 1999 reforms, according to Carol Freer, seek to balance conflicting principles. The principle of provision of universal income maintenance to a widow, irrespective of age or other personal circumstances, conflicts with the principle of guaranteeing income to a widow only when she is unlikely to obtain sufficient income by her own efforts. Further, a balance needs to be struck between a wish to maintain, so far as possible, current conditions of entitlement and the aim to reform the system so as to target benefits on those in greatest need. That balance must take into account the need for “bright line” rules which are clear, easy to administer and avoid diverting resources by imposing disproportionately large costs of administration. Such broad rules will also avoid any risk of arbitrary decision-making.
- With those general features in mind, Carol Freer says that the position of older women in society is special and materially different to that of younger age groups (paragraph 20). She says that payment of widow’s pension to older women has been objectively justified until now. Men, on the other hand, did not need an equivalent to widow’s pension when benefits were introduced in 1925 and do not need them today. Those two reasons form the basis of the reforms under the 1999 Act replacing widow’s benefit by bereavement allowance, which achieves equality for those whose spouses die on or after 9th April 2001, whilst protecting the position of widows already in receipt of widow’s pension by means of transitional pensions. The justification for the continued provision of widow’s pension under the 1992 Act, whilst not making the same provision for men, rests upon the need to direct limited resources to those recipients who need the payment most (see paragraph 21).
- Carol Freer refers to the expectation of older women that they would be able to rely on their husband’s income throughout their life. Return to the job market and the likelihood of finding full-time employment is more difficult since the greater likelihood of women of all ages being in work, at least part-time, has occurred only gradually. The provision of a pension for widows aged 45 and over, when their children are no longer dependent, targets women who were more likely to have given up work on marriage. Whilst the statistics show that the figures for men and women who are economically active are converging, changes have not been so quick or marked for older women (see paragraph 25). She concludes that, whilst the difficulties faced by older women entering the labour market do not justify continuation of special treatment for older widows, bereaved after the 1999 Act comes into force, they nevertheless mark them out from other women in the work-force. Older women have not shared the substantial increase in employment rates among women generally (see paragraph 25). Statistics (set out in paragraph 27) show that older women are less likely to work than younger women and older men.
- Provision of long-term financial support linked to age, in the form of the Widow’s Pension, took account of the work prospects of older women which lagged behind those of men. However, for the future, the legislation reflected the view that it was inappropriate to continue to provide Widow’s Pension for widows who were bereaved after the 1999 Act and to extend such long-term financial support to older widowers. Such an extension would not, in the Government’s view, focus attention where it is most needed. For those aged 55 and over, widowed after the introduction of the 1999 reforms, transitional arrangements were introduced for five years which give both groups access to income support for a transitional period of five years. Those transitional arrangements recognise that, for older women and men, the requirement that they should make themselves available for work, when they may have been out of the labour market for a considerable time, should be introduced gradually.
- The striking feature of the new reforms is that they do not extend Widow’s Pension to men. Rather they achieve equality between men and women by way of the new Bereavement Allowance, limited to a period of 52 weeks. This reflects not only the perceived reduced need for Widow’s Pension amongst older women bereaved in the future, but also the belief that men do not need an equivalent to Widow’s Pension and have never done so. It further reflects the belief that the cost of achieving equality by providing Widow’s Pension to widowers would be disproportionate to any need. The consultation document recorded that if the existing scheme was extended to men, it would cost £250m a year.
- Transitional provisions protected the position of widows already in receipt of Widow’s Pension and Widowed Mother’s Allowance. Widows already claiming widow’s benefits would be managing their affairs in the expectation that support would continue to be available to them in the future. Widowers could not have had any similar expectation. Parliament did consider granting widow’s benefit to men for a period before the time when the 1999 Act came into force. The cost of backdating such claims was estimated at £1billion (see paragraphs 40 and 41 of Carol Freer’s first statement).
- In short, the Government’s justification depends upon the historically disadvantageous position of women on the death of the main breadwinner, a position which is no longer applicable for the future now that the economic position of men and women has converged. For the future there is no continuing justification for payment of a pension. But the position of older women, who have grown to expect continuing support in the form of Widow’s Pension, justifies a distinction between their position and those of men who have never been led to expect support in such a form. The continued support of that particular group bears, so it is argued, a reasonable relationship of proportionality to the aim sought to be achieved.
THE RESPONSE OF MR. NAYLOR
- Central to Mr. Cox’s argument on behalf of Mr. Naylor, is the contention that by the time he applied for a Widower’s Pension on 14 September 2000, there was no objective justification for treating widowers over 45 less favourably than widows of that age. There is no compelling factual basis for such treatment, because, by that time, the convergence of men and women as breadwinners was well established. Mr. Cox argued that the burden lies on the Government to establish by convincing evidence, that the difference in treatment between men and women of that age is objectively justified, rationally connected to a sufficiently important and legitimate aim to justify discrimination and bearing a reasonably proportionate relationship to that aim. In particular, the measures adopted will not be proportionate if they extend beyond that which is the minimum necessary to achieve the aim advanced, namely compensation for the disadvantageous position of women in the work place.
- Firstly, Mr. Cox submits that the statistics reveal that the Government’s justification is out of date. He starts from the advantageous position that by November 1998 the Government accepted that social conditions had changed to the extent that there was no justification for discriminatory treatment in favour of widows for the future. Even prospects for widows over the age of 45 had improved sufficiently to remove the justification for discrimination. By November 1998, seven in ten married women worked; 54% of those aged between 55 to 59 worked and 50% of all widows under 60 worked (see paragraph 3 of the Consultation Document, Chapter 3). Between 1985 when the Green Paper on the reform of social security (Cmnd. 9517) was published and November 1998 the relative position of men and women in the workplace had not changed radically. In 1985 it was recorded that two- thirds of all married women with children over school age and over half of the widows between 40 and 60 went to work (see paragraph 10.0). A similar position is reported in the Consultation Document of November 1998. Between 1985 and 2000 the proportion of economically active women increased by only 5.9% from 67 to 72.9%. Between 1985 and 1995 the increase in women working represented a change of only 3 or 4% from 67 to 70.9%. (See Table 3 of the Statistics of Economic Activity of Women). By 1995 22.7% of all working wives were the main breadwinners and 47% of widows had occupational pensions (See paragraph 5 of the Consultation Document of November 1998).
- In those circumstances Mr. Naylor, who was widowed in 1995 when he was 52, had no greater likelihood of being in work than the majority of widows. The case for change in 1998, was as true of Mr. Naylor as of a widow of similar age. Such women were part of the generation overwhelmingly likely to have been working.
- Mr. Cox, secondly, draws attention to the international context of these provisions. The United Kingdom has, he submits, lagged far behind all other members of the European Council and the European Union who had achieved equalisation many years before (see the summaries of Social Security Survivors Benefits in Europe 1996 to 1997). The last EU Member State to achieve equalisation was the Republic of Ireland in 1994. There was some dispute as to the extent to which European countries had achieved this equality, but it seems to me that Mr. Cox did establish that the United Kingdom’s treatment of survivors’ benefits disclosed discrimination which was not to be found in member states of the Council of Europe.
- The United Kingdom should, suggests Mr. Cox, not only have been well aware of the position in those other member states, but also of the jurisprudence of the ECtHR expressed in Van Raalte v Netherlands  24 EHRR 503. In the Netherlands unmarried childless women over 45, but not men, were exempt from contributing to child benefit. The years in question were between 1986 and 1988. The Dutch Government sought to justify its delay in abolishing the rule on the basis of:-
“the gradual and somewhat unpredictable nature of certain social trends”
- It argued that it would be logical to allow a certain period within which to amend legislation before concluding that there had been a contravention. The Court responded that:-
“The Contracting States enjoy a margin of appreciation in assessing whether and to what extent difference in otherwise similar situations justify different treatment.
However, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex compatible with the Convention”. (see paragraph 39).
“While Contracting States enjoy a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 requires that any such measure in principle, applies even-handedly, to both men and women unless compelling reasons have been adduced to justify a difference in treatment”. (paragraph 41).
- It concluded that no such compelling reasons existed. Mr. Cox contends that the United Kingdom had failed to respond to the clear message of that case.
- That failure, moreover, was accepted by the Government in Parliament during the debate on the Welfare Reform and Pensions Bill in 1999, where the existing system was described as “hugely out of date as regards bereavement” and “woefully out of date”. The opportunity for older men to obtain work depends on training and location; problems for older men are no different from those of older women.
- Mr. Cox also submits that the United Kingdom has failed to heed pressure from the main national bereavement charity CRUSE which has campaigned since 1970 to extend widow’s benefits to widowers. It has further failed to have regard to the policy document issued by the Equal Opportunities Commission before the reforms introduced by the Social Security Act 1986. This sought to establish equal treatment for men and women based upon need, for example, when a widow or widower had been financially dependent on his or her spouse. On 19 September 1978 the Council of the EEC issued Directive 79/7 concerning the need to implement the principle of equal treatment of men and women in the field of social security, although it excluded survivors’ benefits from its scope.
- Moreover, the United Kingdom is a party to the Convention on the Elimination of All Forms of Discrimination against Women (1979) which it signed in 1981. (See in particular Article 13). The United Kingdom signed the International Covenant on Economic, Social and Cultural Rights (1966) in 1976 in which all the contracting parties recognised the right of everyone to social security, including social insurance (see Article 9).
- Mr. Cox then turned to the views expressed in the Consultation Document of November 1998 which supported the contention that the existing system for survivor’s benefits were not well targeted to the aim of directing resources to those most in need (see in particular paragraphs 11-15 of Chapter 3). The Document accepted that the current system failed to distinguish between those who need continuing help and those who do not. Since it is admitted that the existing system was not well targeted, it cannot be contended that the measures were proportionate. An alternative system such as that proposed by the Equal Opportunities Commission had long been proposed. No evidence had been advanced that any change in the system would be too expensive. In any event, Mr. Cox contended, expense is a very weak reason for failure to protect the important right not to be discriminated against on grounds of gender (see e.g. the Advocate General’s opinion in Nimz v Freie Und Hansenstadt Hamburg  ECR 1-297 at paragraph 16).
- Mr. Cox challenged the very basis of the Government’s justification stemming, as he said it did, from broad generalisations which merely served to reinforce and perpetuate stereotypes based on trend. Such generalisations are made manifest by the stereotyping of men as the main breadwinners. In support of this contention he referred to a decision of the court in Inze v Austria  10 EHRR 394. Under Austrian law a legitimate child was given precedence on intestacy in relation to a deceased mother’s farm. The Court dismissed Austria’s attempts at justification:-
“Very weighty reasons would….have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention.” (see paragraph 41)
- The Court rejected the Government’s reasons based on the fact that it could be presumed that the deceased’s intentions would be to give precedence to legitimate children, and illegitimate children did not usually have close links with the parent’s farm. The Court described those as general and abstract considerations which may not have reflected the true situation. Of Austria’s proposed amendments, which would take into account whether a child had been trained to run a farm or had been brought up on a particular property, the Court said:-
“These proposed amendments cannot in themselves be taken as demonstrating that the previous rules were contrary to the Convention. They do however show that the aim of the legislation in question could also have been achieved by applying criteria other than that based on birth in or out of wedlock.”
- It concluded that there was a breach of Article 14 taken with Article 1 of the First Protocol. (see paragraphs 44-45).
- That objective justification should be targeted to individual and not generalised circumstances is echoed in those authorities which rejected “statistically supportable” discrimination. In Zurich Insurance Co. v Ontario (Human Rights Commission)  2 SCR 321 Ontario challenged the imposition of higher car insurance rates on young male drivers than on young female drivers. The majority said:-
“The underlying philosophy of human rights legislation is that an individual has a right to be dealt with on his or her own merits and not on the basis of group characteristics.” (322 H-I).
- Later the Court said:-
“Human rights values cannot be overridden by business expediency alone. To allow “statistically supportable” discrimination would undermine the intent of human rights legislation which attempts to protect individuals from collective fault. It would also perpetuate traditional stereotypes with all of the invidious prejudices. Whether there was an alternative, which in all the circumstances was practicable must be considered”. (323 i-j)
- As long ago as 1981 Lord Justice Lawton observed that courts both in the United Kingdom and in the United States had adjudged that general assumptions based on gender amount to discrimination (see Skyrail Oceanic Ltd v Coleman  ICR 864). Browne Wilkinson J., as he then was, said in the Employment Appeal Tribunal in Horsey v Dyfed County Council  ICR 755:-
“Most discrimination flows from generalised assumption (of this kind) and not from a single prejudice dependent solely on the sex….of the complainant.”
- In Thomas v Chief Adjudication Officer  QB 747, the ECJ considered the refusal of disablement and invalid care allowances to women who had reached the pensionable age of 65 on the grounds that they were not entitled to such benefits immediately before attaining that age. Because men’s pensionable age was 65, a man who lost work at 60 because of disability would have received those allowances. The disqualification applied even when the woman was not in receipt of a pension and even though she would have continued to work but for the disability. The Court was asked whether a member state could rely upon statistical data relating to male and female working and retirement patterns to justify differences in treatment between men and women under the Directive (question 3 p.749). The Advocate General stressed the fundamental importance of elimination of discrimination based on sex (see paragraph 7). The right to equal treatment was an individual right which could not be disregarded on the basis of a generalised approach (See paragraph 15). The Court ruled:-
“As to the United Kingdom’s argument that the vast majority of women receive an old age pension once they have attained the age of 60, suffice it to say that the grant of benefits such as severe disablement allowance or invalid care allowance constitutes, for women who are not yet in receipt of old age pension, despite their having attained the normal retirement age, an individual right which cannot be denied them on the ground that, statistically, their situation is exceptional by comparison with that of most women”. (see paragraph 19, page 768).
- In concluding his challenge Mr. Cox points out that no justification has been advanced in respect of Widow’s Payment and Widowed Mother’s Allowance. Younger widows already in receipt of Widowed Mother’s Allowance will, in the future, become eligible for pensions, but a man in the same position will not. Furthermore, the Government has recognised that there is no justification for differentiating between widows and widowers over 55 in the transitional arrangements which provide equally for income related support over a period of five years without either men or women having to demonstrate that they are seeking work.
THE COURTS’ APPROACH: THE MARGIN OF DISCRETION
- The resolution of the issue whether the undoubted discrimination was objectively justified requires consideration of the extent to which the court should defer, on democratic grounds, to the considered opinion of Parliament. Is it a wide margin or a narrow edge? Mr. Naylor contends for a limited degree of deference whilst the Government argues that the court should adopt a standard of scrutiny at the least intrusive end of a sliding scale of review. The well known dicta of Lord Hope in R v DPP ex parte Kebilene  2 AC 326 at 375 reveal a signpost which points in opposite directions in relation to cases which involve both social and economic policy and rights of high constitutional importance:-
“It will be easier for such an area of judgment [within which the judiciary will defer] to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involved questions of social or economic policy, much less so where the rights are of high constitutional importance or of a kind where the courts are especially well placed to assess the need for protection”.
- There can be no doubt that the principle of equality between the sexes is fundamental to democracy, see e.g. Lord Hoffman in Matadeen v Pointou  1 AC 98 at 109. It is for that reason, contends Mr. Cox, that compelling reasons are required to justify any departure from the principle of equality between the sexes. (See Van Raalte (q.v. supra) at paragraph 39 and 42):-
- Further, Mr. Cox contends that a Government which derogates from the principle of equality of the sexes must adopt measures which cause the minimum interference to the right to non-discrimination. The wide acceptance by member states of the Council of Europe and of the European Union provides further support for intrusive scrutiny (see e.g. The Sunday Times v United Kingdom  2 EHRR 245 at 276).
- Yet, in a democracy it is the democratic institutions which have the responsibility for deciding how public funds should be spent. Both domestic and Convention jurisprudence recognise that it is primarily for Parliament to strike the balance between equitable treatment and efficient use of resources which are necessarily limited. Traditionally, in assessing the legitimacy of the balance to be struck in relation to issues involving social policy and the allocation of resources, considerable deference has been paid to the judgment of the legislature. In Steele Ford and Newton v CPS (No.2) the House of Lords considered the court’s jurisdiction to award costs out of central funds. Whilst part of the reasoning of Lord Bridge in relation to statutory construction is of no application in the instant case his second basis for concluding that there was no power to award costs out of central funds in that case is of relevance:-
“But still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.” (see page 33E).
- In R v Chief Constable of Sussex ex parte International Traders Ferry Ltd  2 AC 418, Lord Slynn emphasised the impossibility of an enquiry undertaken by the court as to how completing claims for money should be resolved (see in particular page 439A-E).
- The ECtHR has itself acknowledged the need to afford a wide margin of appreciation to the High Contracting Parties in cases concerning social policy. Affording a wide margin of appreciation has the consequence that the court will not itself decide whether the measures adopted represented the best solution for dealing with the problem, nor whether the legislature could have adopted an alternative solution. In the context of housing policy, the Court said in Mellacher v Austria  12 EHRR 391:-
“Such laws [controlling the use of property] are especially called for and usual in the field of housing, which in our modern society is a central concern of social and economic policies.
In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures. The court will respect the legislator’s judgment as to what is in the general interest unless that judgment be manifestly without reasonable foundation”. (see paragraph 45)
Later it said:-
“The possible existence of alternative solutions does not in itself render the contested legislation unjustified. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way.” (see paragraph 53)
- Similarly in Stubbings v United Kingdom  23 EHRR 213, in the context of the limitation period for civil action in respect of child abuse, the Court would not substitute its own view for that of the State as to what would be the most appropriate policy (see paragraph 54).
- Now that domestic courts are bound to take into account the jurisprudence of the ECtHR, a degree of deference, which marches in step with a wide margin of appreciation, has been paid to the judgment of the legislature in the field of social policy and the allocation of resources. In relation to housing policy, Lord Woolf stated in Poplar Housing and Regeneration Community Association Ltd v Donoghue  3 WLR 183, paragraph 69, page 202:-
“The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. …..The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.”
- Nevertheless, despite the broad degree of deference afforded to Governments in the field of social and economic policy, the significance of the general recognition by members of the Council of Europe and the European Union cannot be overlooked. As the Court pointed out in Petrovich v Austria  4 BHRC 232 (paragraph 38, page 238), one of the factors relevant to the scope of the margin of appreciation is the existence of common ground between the laws of the Contracting States (see also The Sunday Times case at page 276). In Petrovich the great disparity between the legal systems of the Contracting States in relation to entitlement to parental leave led to a broad margin of appreciation. The absence of uniformity in relation to parental leave is to be contrasted with the non-discriminatory survivors benefits for which members of the Council of Europe and of the European Union, but not the United Kingdom, make provision. The fact that the court was concerned with issues of social and economic policy provided no bar to its dismissal of The Netherlands attempted justification of its discriminatory policy in relation to exemption for unmarried, childless women as opposed to men in the absence of compelling reasons (Van Raalte (q.v. supra)).
CONCLUSIONS AS TO OBJECTIVE JUSTIFICATION
- I suspect that it is neither possible nor productive to determine with any precision the degree of deference to be paid to the legislature when the issues concern social and economic policy and the constitutionally important right not to be discriminated against on the ground of gender. It seems to me that the court can have regard to both those features by, on the one hand, subjecting the reasons advanced by the Government to a degree of scrutiny commensurate with the importance of the right. In so doing the court is merely exercising judicial techniques with which it is familiar. Whatever expression is used (“are the reasons compelling? Do they stack up?”) a court is unlikely to find justification where the reasons advanced do not support the conclusion. It is true that, for example, statistics require skilled evaluation, but if, in the course of a lengthy affidavit the expert (Carol Freer) does not persuade the court then I can see no reason why the court should be inhibited from saying so. If the reasons advanced by the Defendant are insubstantial or, even if they are substantial, they do not persuade me, I shall decline to find any objective justification.
- On the other hand, in relation to the issue as to whether an alternative could have been adopted, it seems to me that the court should adopt a restrained approach. That question directly engages questions of social and economic policy with which the court is ill equipped to deal. It concerns the appropriate allocation of resources. In so far as the justification is attacked on the basis that the solution was not the best which could have been devised, I shall adopt an approach derived from Mellacher. I shall not substitute my view for that of the Government in relation to alternative solutions.
- The essential question seems to me to be not so much whether the position of women in the work-place had converged with that of men but, rather, when that position had been reached and when the Government should have acted to recognise that convergence.
- The starting point must be to recall that discrimination against men stemmed from the historical view that women were disadvantaged in the labour market in comparison to men. The basis for granting Widows’ Pensions to women was to protect them in circumstances where historically they were less likely to be the main breadwinner. This historical judgment must, as it seems to me, have been based on statistical evidence. I do not think that it can be criticised on that basis alone. On what other evidence could the Government have acted to assist those disadvantaged economically? Thus I do not think the Government can be legitimately criticised for relying upon statistics to decide when such assistance was no longer needed. Any reliance on statistics must be scrutinised with suspicion, lest they provide a spurious justification for prejudice. But I see no other sensible basis for targeting those in need or deciding when assistance is no longer required.
- The evidence discloses that the lines showing the comparative position of men and women in the workplace are converging but nevertheless there persists a pattern of women working part-time and of difficulty in obtaining work for more elderly women. As Carol Freer says :-
“Although society’s expectations relating to the role of men and women has been changing during the past 15-20 years, the shift has been a gradual one and it was therefore reasonable and proportionate for the legislation to continue to provide support by way of widow’s pension to widows during this period of social change. “ (see paragraph 22 )
- It is the more elderly women, at a greater disadvantage to men in the labour market, who are more likely to have been bereaved. 77.5% of those who began to receive Widow’s Pension between March 2000-2001 were over 45 but under 65 and without dependent children (Haley paragraph 4). True there ought to have been a growing appreciation of a disproportionate impact of affording benefits only to women. But nonetheless the Government was entitled to a period for considering the effect of the increasing part women had to play within the labour market and secondly the Government was entitled to a period to correct the effects of a discrimination which was no longer justified. The Government is under a duty to monitor measures, which may have a discriminatory effect on one gender, but is also entitled to a period not only to monitor those effects, but to correct them.
- Support for those propositions is to be found in the decision of the House of Lords in R v Secretary of State for Employment ex parte Seymour-Smith & Anr  1 WLR 435 in which they considered the indirectly discriminatory effect against women of the increase of a qualifying period for claiming unfair dismissal from one year to two. The order in question was made in 1985; the issue was whether the Government ought to have taken steps to repeal the order before 1991. Lord Nicholls said at page 452:-
“The Government is under a duty to take reasonable steps to monitor the working of the measure. The Government must view the position periodically. The greater the disparity of impact, the greater the diligence which can reasonably be expected of the Government…. Had the Order, lawful at its inception, become unlawful by 1991?
Here, again, the matter is debatable. As time passed, the persistently adverse impact on women became apparent. But, as with the broad margin of discretion afforded to governments when adopting measures of this type, so with the duty of governments to monitor the implementation of such measures: the practicalities of government must be borne in mind. The benefits of the Order could not be expected to materialise overnight, or even in a matter of months. The Government was entitled to allow a reasonable period to elapse before deciding whether the order had achieved its objective and, if not, whether the order should be placed with some other measure or simply repealed. Time would then be needed to implement any decision. I do not think the Government could reasonably be expected to complete all these steps in 6 years, failing which it was in breach of community law. The contrary view would impose an unrealistic burden on the Government in the present case.”
- He concluded that the Secretary of State had provided objective justification for the Order of 1985 in 1991.
- Further, the measures in question afforded a positive benefit to women designed to correct their historical disadvantage on the work market. The Mr. Naylor contends that equality ought to be achieved by affording him the same advantage. He seeks to impose upon the Government a positive obligation to allocate resources to him. This, it seems to me, is a situation to be contrasted with the position of the unmarried, childless men over 45 obliged to pay a contribution in Van Raalte. In that case men sought to remove the discriminatory imposition of a form of tax. In the instant case a complainant seeks a re-allocation of resources in circumstances where the ECtHR acknowledges that the High Contracting parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention:-
“with due regard to the needs and resources of the community and of individuals” (see e.g. Johnson v Ireland 9 EHRR 203, paragraph 55, page 220).
- In determining how to target resources to those in need, the legislature is entitled to impose “bright line” rules which are easy to apply and which may not focus with precision on the merits of individual cases. No logic can indicate where the balance should be struck; evaluative judgments are required, based on experience. A system which avoids undue cost of administration by virtue of finely calibrated rules may lead to a correspondence between those rules and the underlying rationale which, in the instant case, is to target those most in need. But such bright line rules in the context of social and economic policy do not lead to incompatibility even if individual hardship is occasioned. Examples may be readily found in such cases as Mellacher and in James v U.K. in which the Court acknowledged an objective basis for the rules which did not correspond exactly to their rationale. Thus the ambit of the rule need not be coterminous with its rationale. For that reason I reject the challenge to the Government’s failure to adopt the proposal of the EOC, based upon individual circumstances. The Government was entitled to avoid complex and expensive assessments of need.
- Whilst I accept that other members of the Council of Europe and the European Union achieved equality far earlier than the United Kingdom, it is difficult to afford overriding weight to that factor. The brief description of the position in other countries does not enable the court to assess the overall economic effect of those measures. It is not possible to place survivors’ benefits in those countries into the context of benefit systems as a whole nor to determine whether the historical position had been the same as in the United Kingdom. Those countries may have had no legacy of attempts by Government to raise standards for women disadvantaged on the labour market.
- The Government was entitled to conclude that those who had been in receipt of Widow’s Pension, should continue to be so. There is an objective basis for treating those women as a special case, given their expectations. No such expectation could have arisen in the minds of men of a similar age. True it is that younger women with dependent children, whose husbands died before April 2001, may in the future, receive a Widow’s Pension. But it is a matter of mere speculation as to whether a younger man would maintain the qualifications for receipt of such a pension in the future.
- For these reasons I conclude that the Government was entitled to wait until 1998 to produce its consultation paper and entitled thereafter to wait until April 2001 before introducing measures designed to achieve equality. Parliament was far better placed than the court to make an overall assessment of how limited resources should be allocated to meet need and when the time had arrived for removing an advantage afforded to women to compensate them for their historical disadvantage in the labour market. That the right to non-discrimination on the grounds of gender is fundamental to democracy cannot be gainsaid, but in the instant case objective justification for such discrimination in the past has been advanced. The reasons for not introducing change earlier have been, to my mind, substantiated. The time taken to make changes seems to me to have been a reasonable and proportionate response to the problem.
- At the heart of the issue lies the question of how resources, raised by taxation, should be allocated. Such complex decisions, to adopt the words of Lord Hoffman in the different context of national security, (Home Secretary v Rehman  3 WLR 877 at 897, paragraph 62F:-
“Require a legitimacy which can be confirmed only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”
FOURTH ISSUE : NON-RETROSPECTIVITY: CALLED THE WALDEN POINT
- The defendant contends that, under the Convention, it is legitimate for national authorities to have a reasonable period to correct legislation for the future, once the incompatibility of national legislation with the Convention has been identified. He contends, secondly, that it is legitimate for national authorities, in the interests of legal certainty, to treat individuals under the existing legislation in the interim, pending correction of the incompatibility. Applying those principles it is argued that the period for adjustment started on the enactment of the Human Rights Act 1998, absent any clear guidance from Strasbourg jurisprudence. In the light of the major adjustments required to produce equality, a period between the enactment of the Welfare Reform and Pensions Act in 1999 and its coming into force on 9 April 2001 was reasonable.
- It is important to appreciate the context in which this argument was raised. It was first advanced in the outline written argument at paragraphs 46-47 and precedes the arguments in relation to objective justification relating to Widow’s Pension. It is said to be relevant to the compatibility of Widow’s Payment and Widowed Mother’s Allowance in addition to Widow’s Pension. No objective justification for discrimination in relation to Widow’s Payment and Widowed Mother’s Allowance has been advanced. It is a distinct argument. But I am dealing with it, after discussing the objective justification advanced for Widow’s Pension, because it seems to me important to reach conclusions as to this argument in the light of the arguments relating to objective justification for Widow’s Pensions. It is important to determine whether, in reality, a separate argument is being advanced lest, as the claimants contend, this argument proves to be no more than an etiolated version of some aspects of the objective justification argument without any evidence advanced in support.
- The argument is based on three decisions of the ECtHR. In Marckx v Belgium, the Court, as I have said, ruled that the Belgian law, which limited a mother’s capacity to make a bequest to an illegitimate child, was incompatible with Article 14 taken in conjunction with Article 8. But it acknowledged that the ruling of the court had effects extending beyond the confines of the particular case; it recognised that its decision could not “of itself annul or repeal” the Belgian provisions. The Court’s judgment was declaratory:-
“and leads to the state the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53.” (paragraph 58, page 353).
- It accepted that evolution towards equality had been slow and concluded:-
“Having regard to all the circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian state from re-opening legal acts or situations that ante-date the delivery of the present Judgment. Moreover a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effects of those decisions of that court that annul legislation.” (see paragraph 58, page 353).
- In Walden v Liechtenstein, (Application No. 33916/96, decision of 16 March 2000), the applicant’s wife had challenged legislation in Liechtenstein, which resulted in married couples’ pension being no higher than his wife’s single pension. But it is important to record that the arguments were focussed upon the Liechtenstein State Court’s decision, sitting as a Constitutional Court, that the contested provisions should not be set aside, having regard to the complexity of social security law and the maximum six months time limit, under Liechtenstein law, for suspending an abrogation of the existing law and enacting new legislation. In fact a new law had been adopted prior to the challenge in the European Court of Human Rights. The Court concluded that the principle of legal certainty:
“may dispense States from questioning the legal acts or situations that antedate judgments of the court, declaring domestic legislation incompatible with the Convention. The same considerations apply where a Constitutional Court annuls domestic legislation as being unconstitutional (see Marckx…). Moreover, it has also been accepted in view of the principle of legal certainty that a Constitutional Court may set a time limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period…”. (see pages 6-7)
- It concluded that in view of the detrimental effects of an annulment, the short period for suspending an abrogation, the fact that the new law was adopted only seven months after the State Court’s decision and the State Court’s refusal to annul the unconstitutional provision, a transitional period served the interests of legal certainty and was proportionate. (See page 7).
- The court applied similar principles in JR v Germany 22651/93 (a decision on admissibility of 18 October 1995). In that case the German domestic courts declared certain income tax charges unconstitutional but accepted that, following the Constitutional Court’s declaration, it was objectively justifiable to charge income tax under the impugned provisions until reform was enacted, a period between September 1992 and January 1996.
- It does not seem to me that the principle of legal certainty provides any defence, in the instant cases, to the charge that the existing legislation contained in the 1992 Act is incompatible with the Convention. The principles in Walden and JR are concerned with the issue as to whether the failure of a domestic constitutional court to annul existing incompatible legislation was itself incompatible with the Convention. The principles are not relevant to the issue of the compatibility of the legislation itself.
- I derive from those three cases the principle that a domestic constitutional court may, in the interests of legal certainty, apply existing incompatible legislation to a claimant pending necessary reform. Thus domestic courts may act in a similar manner to the way in which the European Court of Human Rights itself acted in Marckx.
- But it does not seem to me that these principles afford any defence to the allegation of incompatibility. Certainly they cannot form any basis for seeking to justify the discrimination which is accepted in relation to Widowed Mother’s Allowance and equally, subject to the points in relation to Article 8 and Article 1.1, in relation to Widow’s Payments. The argument must be distinguished from the arguments based upon Seymour-Smith, which were advanced as part of the arguments of objective justification in relation to Widow’s Pension. In relation to this argument, no evidence by way of justification has been advanced at all. It rests purely upon legal principles. Those principles seem to me to be relevant to a different issue, to the remedies which this court is obliged to afford the claimants should their arguments as to incompatibility be successful and not to the question of incompatibility itself. The principles are relevant to the question whether the non-retrospective effect of Section 6 of the Human Rights Act 1998 and the restriction of the Court’s powers, in the light of the defences under Section 6(2), to making declarations of incompatibility are themselves compatible with the Convention. I shall turn to those provisions later, but for the time being, it seems to me that the principles advanced by the Government can have no wider effect. The Government cannot justify discrimination by continuing to apply discriminatory legislation for as long as possible. Absent any objective justification, it is the court’s duty to rule that the legislation is discriminatory and afford such remedies as are open to it under the provisions of the 1998 Act.
FIFTH ISSUE: DISCRIMINATION AS BETWEEN WIDOWERS WHO BRING CLAIMS IN THE EUROPEAN COURT OF HUMAN RIGHTS AND THOSE WHO CLAIM THROUGH THE DOMESTIC COURTS.
- In a powerful proem matched only by the vigour of the peroration, Mr. Goudie QC accuses the Government of adopting a policy of attrition designed to deter widowers from making claims for benefits equivalent to those which they would have received had they been widows. The complaint arises out of the Government’s practice of making extra-statutory based payments to those widowers who brought admissible claims in Strasbourg. Such payments were made in friendly settlements in cases brought in Strasbourg by Mr. Cornwell and Mr. Leary. A similar offer was made to Mr. Willis which was not accepted. It appears that there have been two other cases where a friendly settlement was reached by way of extra-statutory payment, Fielding and Crouch (Application No. 39472/98, decision of 18 September 2001). The Government has refused to make similar payments by way of settlement to widowers such as the claimants who have not brought proceedings in Strasbourg, but have claimed through this court.
- The policy is stated in a letter from the defendant to Mr. Hooper dated 26th May 2000:-
“As you know, the Government has secured friendly settlement in two cases recently. Nevertheless there is no statutory basis to make payments of Widow’s Benefits to men and the Government’s obligation, following the European Court of Human Rights’ finding that the cases are admissible, is to future widowers..
There are no plans to make extra-statutory payments before the new bereavement benefits are introduced other than to those widowed fathers who take cases to the European Court of Human Rights and obtain an admissibility ruling.”
- In a later letter dated 10 August 2000 to Mr. Hooper, the defendant suggested that individuals should contact their local social security office for further information. The claimants contend that the consequences of this policy are that should the claimant’s claim fail in the domestic courts, including, if necessary, the House of Lords, and if he retains the appetite and funding to go to Strasbourg, he will be placed several years later in exactly the same position as he would have been if the Government had made an extra-statutory payment to him in the first place without requiring a claim in Strasbourg. Should he refuse a settlement payment in Strasbourg, he will inevitably succeed in relation to Widowed Mother’s Allowance and is likely to succeed in relation to Widow’s Payment in respect of which there has hitherto been no dispute in the case of Mr. Willis. The European Court of Human Rights will then award damages including interest and costs. Thus the public purse will be many thousands of pounds poorer.
- To draw a distinction between those who claim in Strasbourg whose cases are either bound to succeed or will be settled and those who claim here, is, it is contended, unjustified and wholly without any rational explanation, save that the process is designed to deter claimants by forcing them to bring claims in Strasbourg after failure in the domestic courts. It is impermissible, so it is contended, to agree to settle cases where the claimants go to the time and expense of bringing cases in Strasbourg whilst forcing them to litigate fully in the domestic courts. The Government has itself described the process of bringing claims in Strasbourg as a “long and hard road” (see paragraph 1.17 of the White Paper “Bringing Rights Home”, Cmnd. 3782).
- The complaint is brought on two bases: that it unlawfully discriminates between widowers without any justification contrary to Article 14 read with Articles 8 or 6 or 1 of the First Protocol. Alternatively, it is an irrational and unfair policy contrary to well-recognised principles of domestic public law. I should record that this aspect of the claim relates only to Widow’s Payment and Widowed Mother’s Allowance. No claim in relation to Widow’s Pension has been settled.
ARE THE CLAIMS WITHIN THE AMBIT OF ARTICLE 8?
- The claim is for an extra-statutory payment, pursuant to the Human Rights Act and under domestic public law. In seeking such an extra-statutory payment, without being compelled to exhaust domestic remedies, the claimants seek to vindicate rights which, for the reasons I have already advanced in relation to discrimination between widows and widowers, fall within the ambit of Article 8. The clearest example of this is in relation to Widowed Mother’s Allowances which are accepted to fall within the ambit of Article 8. The claim for the extra-statutory payments fall within Article 8 because they are the means by which both these claimants and those applicants who brought proceedings in Strasbourg seek to vindicate their rights. In those circumstances I conclude Article 14 does apply.
ARE THE CLAIMS WITHIN THE AMBIT OF ARTICLE 6 OR ARTICLE 1 OF THE FIRST PROTOCOL?
- In the light of my conclusion that these claims fall within the ambit of Article 8 there is no need to lengthen this judgment by any detailed examination of the application of Article 6 and Article 1 of the First Protocol. But I should record my brief conclusions in relation to those Articles, should my conclusion in relation to Article 8 be incorrect.
- The claimants contend that Article 6 is engaged because the defendant is obliged by Section 6(1) of the Human Rights Act to make the extra-statutory payment which they seek. I shall consider later whether that contention is correct. But in my judgment, it is irrelevant. The payment made by the Government was a discretionary extra-statutory payment designed to settle the proceedings brought in Strasbourg; it was not a payment received as of right. Thus, it is outside Article 6 (see Masson and Van Zon v Netherlands  22 EHRR 491, paragraphs 49-52). Article 6 is concerned with the determination of civil rights and obligations under national laws. The payments which those who brought claims in Strasbourg received were made in settlement of claims under international law and not under domestic law. There were no claims under domestic law and thus Article 6 has no application (see James v U.K. (q.v. supra, paragraph 81):-
“Article 6(1) extends only to “contestations” (disputes) over (civil) rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law: it does not in itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the contracting States.
- Such claims were not recognised, even as arguable claims, under domestic law. They were brought in Strasbourg because they were not recognised in domestic law.
- Finally, for similar reasons, I do not consider that those settled claims fell within the ambit of Article 1 of the First Protocol. Mr. Goudie QC argued that they were legal claims capable of constituting a possession. In Stran Greek Refineries v Greece  19 EHRR 293, paragraph 59, the court ruled that in order to determine whether the applicants had a possession within the meaning of Article 1 of the First Protocol:-
“The court must ascertain whether (the judgment at issue)…had given rise to a debt in their favour that was sufficiently established to be enforceable”.
- True it is that the Court appears to have weakened that requirement in Pressos Compania Naviera v Belgium  21 EHRR 301 in relation to causes of action analogous to claims in tort within this country. But in National & Provincial Building Society & Others v U.K.  25 EHRR 1271, the Court had considerable doubt as to whether claims for restitution brought by building societies other than the Woolwich, which were defeated only by retrospective tax legislation, were sufficiently established to amount to a possession. The Court doubted whether the claims for restitution in respect of which writs were issued prior to the decision of the House of Lords in Woolwich v Inland Revenue Commissioners (No 2) did amount to possessions since at that time they were not sufficiently established or based on any legitimate expectation that they would succeed. (See in particular paragraphs 67 to 69). The Court declined to reach any concluded view and was prepared to proceed on the working assumption that the applicant societies did have possessions. But the Court’s doubts as to whether those claims were possessions demonstrates, to my mind, that any claim, in order to be a possession, would only be sufficiently established if there is a likelihood of success. I conclude that the claims made for extra-statutory payments do not qualify as possessions.
IS THERE A DISTINCTION BETWEEN THOSE WHO CLAIM IN STRASBOURG AS WIDOWERS AND THOSE WHO CLAIM THROUGH THE DOMESTIC COURTS
- This issue turns on whether widowers, who have brought proceedings in the ECtHR are in a comparable situation to those who bring proceedings in domestic courts. Both sets of widowers seek to vindicate their rights enshrined in Article 8 read with Article 14. However, in my judgment, the fact that some widowers have elected to litigate in Strasbourg whilst others have done so through the domestic courts does establish a material distinction. In Stubbings (q.v. supra) a group of applicants complained as to the six year limitation period from their 18th birthdays in which to initiate civil proceedings whereas a criminal prosecution could be brought at any time and, if successful, a compensation order could be made. The Court accepted that there was a distinction for the purposes of Article 14 between those who were the victims of intentionally inflicted sexual abuse and those who were the victims of harm inflicted negligently. The Court ruled;
“It would be artificial to emphasise the similarities between these groups of claimant and to ignore the distinctions between them for the purposes of Article 14” (see para 71, page 239).
- In National and Provincial Building Society v UK  25 EHRR 127 the Court drew a distinction between the Woolwich Building Society which had embarked upon litigation, taking upon itself the risks of complex and expensive proceedings, and other building societies even though at least the Leeds had shown support for the litigation brought by the Woolwich. Because the Woolwich alone had embarked upon proceedings, the Court accepted that the other building societies were not in a relevantly similar situation (see para 89 pages 174 – 175). These authorities do, as it seems to me, establish that the forum in which claimants litigate may afford a valid ground for distinction between groups of litigants. In the instant cases applicants who litigate in Strasbourg are to be distinguished from those who litigate in the domestic courts.
- The defendant further contended that in order to establish a claim under Article 14 an individual must show that he has been discriminated against on the basis of:-
“A personal characteristic (status) by which persons or groups of persons are distinguishable from each other”. (see Kjeldsen, Busk Madsen and Pedersen v Denmark  1 EHRR 711)
- This was the view expressed by the Court of Appeal in St. Brice and Anr v L.B. of Southwark  EWCA Civ 1138. In that case tenants complained as to the different consequences of the application of the County Court Rules as opposed to the rules of the Supreme Court. The County Court Rules, unlike the rules of the Supreme Court, did not require notice of an application to the court to issue a Warrant of Possession to be given to the tenant. The decision of the Court of Appeal was followed by Richards J. in R v Dorset County Council on the application of Beeson (C0/25/2001, judgment of 30 November 2001). In that case the personal representatives asserted they were being discriminated against in respect of rights of appeal when compared with other persons refused benefits for similar reasons under different statutory schemes.
- The claimants contend that it is not necessary for them to rely upon the reference in Article 14 to “other status” where the Article prohibits discrimination:-
“on any ground such as” (my emphasis).
They point out that in National and Provincial the Court made no reference to the absence of any personal characteristic capable of founding the claim of discrimination. In St Brice the ground of discrimination complained of did not, say the claimants, turn on any characteristic of the complainant tenant at all but rather upon the choice of the landlord as to the forum in which to take possession proceedings. National and Provincial does not appear to have been cited to the Court of Appeal in St Brice. But nevertheless I feel compelled in the light of those two decisions to follow the general principle enunciated by the Court of Appeal. In those circumstances, the absence of any personal characteristic founding the claim for discrimination under Article 14 affords an additional ground for rejecting the contention that the two groups of litigant widowers were in an analogous situation for the purposes of Article 14.
SIXTH ISSUE: THE RATIONALITY OF DRAWING A DISTINCTION BETWEEN THE GROUPS OF WIDOWERS
- My conclusion that the two groups of litigants were not in an analogous situation for the purposes of Article 14 means that it is not necessary for me to consider the grounds of objective justification advanced for the purposes of Article 14. Nevertheless similar points arise in the context of the claim that the Defendant’s failure to treat the groups of widowers who bring proceedings in the domestic courts in the same way as those who bring claims in Strasbourg is conspicuously unfair and/or irrational. Although similar issues arise, the standard applied by the court is distinct. In the context of domestic and public law the court is not exercising primary judgment but conducting a review which is traditionally less intense. I doubt, in this case, whether that makes any difference to the conclusion.
- To force them down the long and hard road to Strasbourg has, the claimants contend, no purpose other than to wear them out and deflect them from seeking compensation.
The claimants rely, to a substantial extent, on the decision in R v Inland Revenue Commissioners ex parte Unilever  STC 681. But in that case the Revenue had persisted during many years of assessment in permitting late claims for loss relief in Corporation Tax computations but, suddenly, refused those claims on the basis that they were out of time. The Revenue’s practice had lulled the taxpayer into a false sense of security. No such expectation arises in this case. It cannot sensibly be suggested that the claimants ever had an expectation of being treated in the same way as widows. The Government had never explicitly, or by implication, led them to believe that if they brought claims in domestic courts those claims would be settled.
- Nonetheless the allegation that the Government has pursued an improper policy of attrition requires examination even in the absence of any analogy with the circumstances which arose in Unilever.
- A number of reasons for the stance taken by the defendant were advanced by Mr. Sales. Some of them seemed to me to be of little weight. It was suggested that the Government was entitled to rely upon the filter mechanisms in relation to admissibility provided by the Strasbourg system. Out of time claims and issues as to whether claimants were victims would be declared inadmissible in Strasbourg thus avoiding any question of friendly settlement. It does not seem to me that such considerations provide any justification for requiring claimants to tread a road which I accept is long and hard. Such a filter is readily available in domestic courts and, once the hurdles of time limits and the question of status as a victim is determined in this Court, those requirements provide no basis for declining to settle such cases brought within the domestic courts in the same way as they have been settled in Strasbourg.
- However, one consideration does seem to me to provide a justification which dissuades me from determining that the policy is irrational. At the time the claims were made in Strasbourg, Parliament was actively considering reforming the law in relation to survivor’s benefits. A consultation paper had been published in November 1998 and the Act was passed in 1999. In such circumstances it is plain that the Government was not seeking to avoid changing the law and to “buy off” widowers in the meantime. It was considering changing the law and had done so before the friendly settlements in question.
- The Government’s stance must be viewed in the context of its proposed change in the law for the future and also, in the light of the domestic statutory regime for the incorporation of the Convention under the Human Rights Act 1998. The 1998 Act, to which I shall turn shortly, established a domestic regime which drew a careful balance between the powers of the courts and those of the democratically elected legislature. The line of separation between the powers of the courts and the powers of Parliament runs throughout the 1998 Act and is made manifest in provisions such as Section 6 and Sections 4 and 10, and the rules limiting the retrospective effect of the Act. At a time so shortly before the coming into force of the 1998 Act, it seems to me the Government was entitled to settle claims brought in Strasbourg, whilst leaving itself in a position to defend itself in respect of what Mr. Sales described as major constitutional points in domestic law. Such constitutional points did not arise in the context of claims brought in Strasbourg. I do not think that because the Government chose to settle claims in Strasbourg it bound itself to accept similar claims brought in the domestic courts where those claims, as this case amply demonstrates, do raise significant issues, particularly under Section 6 of the 1998 Act.
- Mr. Goudie QC castigated such reasons for requiring claimants to litigate in domestic proceedings as being mere ex post facto justification. It is not supported by any evidence. It is thus mere speculation and conjecture whereas the only obvious reason for the policy is to deter claimants and save the Government money. His essential complaint on behalf of the claimants is not that they are being forced to commence litigation in the United Kingdom but rather that they are being forced to litigate at all.
- I do not think it was necessary for the Government to justify its policy by evidence. My conclusion, as I have said, rests on the proposition that the Government cannot be debarred from raising the issues it has in the context of the domestic statutory provisions merely because it has settled claims in Strasbourg. They are test cases and their outcome will determine the position of many other widowers. They will only need to litigate in Strasbourg should the courts here refuse their claim. Of course their position is less fortunate than those who took their opportunity to litigate in Strasbourg. But that seems to me to be a consequence of the fact that Parliament did not choose to incorporate the Convention until 1998. In failing to incorporate the Convention before 1998 the United Kingdom did not act in breach of the Convention. Once the Convention did become part of domestic law, issues, different to those relevant to applications in Strasbourg, were bound to arise. These claimants were caught on the cusp but their uncomfortable position does not compel the Government to settle their claims.
- The claimants further relied upon the decision of the Court of Appeal in R v Hertfordshire County Council ex parte Cheung & Ors (transcript 26th March 1986) in support of the proposition that it is “a cardinal principle of good administration” that people in a similar position should be treated equally whether they were claimants who had brought proceedings or merely potential claimants. In that case claimants had been refused higher education awards on the basis of a misunderstanding of the law. Lord Donaldson said:-
“I wholly accept the proposition that if a test case is in progress in a Public Law Court, others who are in similar position to the parties should not be expected themselves to begin proceedings in order to protect their positions. I say this for two reasons. First, it would strain the resources of the Public Law Court to breaking point. Second, and perhaps most important, it is a cardinal principle of good public administration that all persons who are in a similar position should be treated similarly. Accordingly, it could be assumed that the result of the test case would be applied to them by the authorities concerned without the need for proceedings and that, if this did not in the event occur, the court would regard this as complete justification for a late application for Judicial Review”. (see page 6).
- For the reasons I have already given the claimants in the instant case were not in a similar position to those in Strasbourg. Further, the students’ claims for grants rested upon a decision of the House of Lords that they had a valid claim under domestic law. The only ground for refusing them a grant was that they had not brought proceedings for Judicial Review in time. But the essential distinction is that in that case those students were entitled to rely upon a test case, decided in their favour in the House of Lords, whereas this is the test case. It is a case in which Government, in my view, is entitled to test its assertions particularly as to the effect of the 1998 Act. It is to those assertions I now turn.
THE HUMAN RIGHTS ACT 1998
SEVENTH ISSUE: INTERPRETATION OF SECTIONS 36, 37 and 38 OF THE SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
- Mr. Cox on behalf of the claimants other than Hooper, and undaunted by lack of support from Mr. Goudie QC, argues that it is possible to construe those three provisions so as to refer to a man and a wife, and thus extend entitlements to Widow’s Payments, Widow’s Pensions and Widowed Mother’s Allowance to widowers. Mr. Goudie QC, on behalf of the claimant Hooper, concedes that no such interpretation is linguistically possible.
- There can be no doubt as to the strength of the interperative powers of the courts under Section 3(1). I need, perhaps, refer only to part of paragraph 44 of the speech of Lord Steyn in R v A. (No.2)  2 WLR 1546 at 1563:-
“In accordance with the will of Parliament as reflected in Section 3, it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in the statute, but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.”
- However, it is still necessary for the court to distinguish between legitimate construction and illegitimate legislation. In R v Lambert  3 WLR 206, decided about 1½ months after R v A (No.2), Lord Hope observed that Section 3(1) preserves the sovereignty of Parliament:-
“It does not give power to the judges to overrule decisions, which the language of the statute shows have been taken on the very point at issue by the legislature.” (see paragraph 79, page 234).
Later he observed:-
“But the interpretation of the statute by reading words in to give effect to the presumed intention must always be distinguished carefully from amendment. Amendment is a legislative act. It is an exercise which must be reserved to Parliament.” (paragraph 81, page 234-5)
- Whilst I accept the power of Section 3(1) is demonstrated in both R v A (No.2) and R v Lambert, I do not agree that it is linguistically possible to give a meaning compatible with the Convention to Sections 36, 37 and 38 of the 1992 Act. Firstly, the sections specifically draw a distinction between men and women and husbands and wives. Section 36(1) refers to a late husband. Section 36(2) refers to a man and a husband, Section 36(3) refers to a husband. Similar distinctions are drawn in Section 37 and Section 38. Section 41 of the 1992 Act makes specific provision for long-term incapacity benefit for widowers.
- Secondly, there is a significant distinction between cases concerning the requirements of a fair criminal trial such as R v A (No.2) and Lambert where the courts might be regarded as authoritative experts and cases concerning social and economic policy in respect of which courts are by no means expert. Such decisions are described as “polycentric decisions” by Lon L. Fuller in his essay “The Forms and Limits of Adjudication” (1978) 92 Harv LR. 353. Such cases require the decision-maker, in considering the effect of adapting legislation, to be in a position to foresee the effects of such adaptation. Parliament is clearly in a better position to do that than the court in the field of social and economic policy. Such adaptation requires the re-allocation of public funds, a field in which the courts are far less equipped to tread.
- For those two reasons, I conclude it is not possible to interpret the provisions of Sections 36, 37 and 38 of the 1992 Act in a way which entitles widowers to the same allowances as widows.
EIGHTH ISSUE :NON-RETROSPECTIVE EFFECT OF THE 1998 ACT
- The defendant contends that in the case of Mr Hooper no act or failure to act took place after the 1998 Act came into force. It is said that the claim on which he seeks to rely was made on 12 May 2000. His position is to be distinguished from those of the other claimants who made written claims after 2 October 2000. Mr. Hooper alternatively relies on a letter dated 16 August 2000 which received no reply save for a rejection of his application in the Acknowledgement of Service filed by the defendants on 23 January 2001. In reality, the letter dated 16th August 2000 and the reminder on 4 October 2000 seem to be no more than a letter before action rather than a fresh claim leading to a fresh decision.
- In contending that the 1998 Act has no application to decisions in relation to Mr. Hooper, or for that matter in relation to the other claimants who made earlier claims, the defendant relies upon Section 7(1) and Section 22(4) of the 1998 Act. Section 22(4) provides:-
“Paragraph (b) of sub-section (1) of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section”.
- Section 6(6) provides that an act includes a failure to act. In R v Lambert  3 WLR 206, the House of Lords, by a majority of 4-1, held that the general rule against retrospective effect of legislation applies to the 1998 Act. The exception in Section 22(4) supported the presumption that the other provisions of the 1998 Act are not intended to have retrospective effect. In R v Kansal  UKHL 62, none of their Lordships doubted that general principle. Section 3 has retrospective effect but only in a limited sense. It affects the interpretation of legislation “whenever enacted” (see Section 3(2)(a)), but it does not have retrospective effect in relation to events occurring before 2 October 2000. In Kansal, Lord Hope said:
“But I do not find anything either in Section 7(1)(b) or in Section 6(1) and (2) which requires retrospective effect to be given to Section 3(1). If that were to be done, the result could be that legislation which at the time of the pre-commencement Act was being applied correctly, according to the traditional rules of statutory interpretation must now, for the purposes of Section 7(1)(b) be given a different meaning which best accords with the Convention rights. Such a result could have profound consequences. It would not be consistent with the general principle on which primary legislation depends, which is legal certainty. So I would not extend retrospectivity to Section 3(1), in the absence of an express provision to that effect.”
- None of these principles are disputed by Mr. Goudie QC on behalf of the Mr. Hooper. But he contends that the defendant has mis-categorised the nature of the complaint. The complaint, he argues, is directed at the failure of the defendant to make an extra-statutory payment in an amount equivalent to the benefits which he should have received and which were received by the applicants, Mr. Cornwell and Mr. Leary on friendly settlement of their claims in Strasbourg. The challenge is to the policy expressed in the letter dated 26 May 2000 in relation to those who had not taken cases to Strasbourg. That policy was a continuing policy, subject to challenge after 2 October 2000. The temporal effect of that policy continues. The Mr. Hooper is entitled to payment falling due on 2 October 2000 which would rectify the breach of his convention rights which arose on that date.
- I do not accept that Mr. Hooper’s claims can be characterised in this way. True it is that the refusal of extra-statutory payments, equivalent to the amount of the benefits a widow would have received, were made pursuant to a policy. But to my mind they were, nonetheless, single discrete decisions constituting a discrete act or failure to act. The decisions had continuing effects but were nonetheless decisions made at a particular moment in time. They were decisions made in response to single discrete claims. Mr. Goudie’s classification of those claims as refusals of extra-statutory payments rather than statutory benefits does not assist the claimant. The decisions impugned were made before the coming into force of the 1998 Act and thus it is not open to Mr. Hooper to invoke Section 7(1). The decisions as to Mr. Hooper’s claim bear no similarity to the continuing failure of the water undertaker to bring to an end repeated flooding of the claimant’s property which form the subject matter of Marcic v Thames Water Utilities Ltd.  3 All E.R. 698, on which Mr. Goudie QC relied.
NINTH ISSUE: WAS THE DEFENDANT ACTING UNLAWFULLY (THE EFFECT OF SECTION 6 OF THE HRA 1998).
- The defendant argues that Section 6(1) does not apply because the refusal to pay benefits, be they statutory or extra-statutory, was not unlawful. Accordingly the court has no power to grant any relief or remedy under Section 8 of the 1998 Act. The court is thus limited to its power to make a declaration of incompatibility under Section 4.
- This issue raises questions of considerable importance in relation to the line drawn between the powers of the court and the powers of the legislature. The defendant contends that Section 6(1) of the 1998 Act has no application because of the provisions of Section 6(2)(b). Section 6(2) reads:-
“Sub-section 1 does not apply to an act if –
(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
- These provisions read with Section 3(2)(b) and Section 4(6) play an important part in preserving the sovereignty of Parliament. If the incompatibility of Sections 36 and 37 of the 1992 Act cannot be avoided by interpretation under Section 3(1), then the validity, continuing operation and enforcement of the incompatible provisions are not affected by the interpretative obligation of Section 3 or a declaration of incompatibility under Section 4. The court is not entitled to disapply incompatible legislation (see Lord Steyn in R v DPP ex parte Kebilene  2 AC 326 at 367).
- Mr. Sales accepts that Section 6(2)(a) has no application in the instant case. He makes the important concession that Sections 36 and 37 (and, if it was relevant, Section 38) do not expressly, or by implication, exclude the power of the Crown to make an extra-statutory payment. The source of such power, unlike the power of the Inland Revenue under section 1 of the Taxes Management Act 1970, was not made clear to me. But such payments were, after all, made to widowers who litigated in Strasbourg. The consequence of that concession is that the defendant can only rely upon Section 6(2)(b). However, it is contended that the court cannot trespass upon that which is properly the province of Parliament by ordering the defendant to make extra-statutory payments to a new class of beneficiaries which Parliament has taken a deliberate decision not to create. Parliament has the exclusive right to allocate resources. He draws attention to Parliament’s deliberate choice in 1992 to confine survivors’ benefits to widows. In 1999 Parliament chose to create a new system which truncated benefits for all surviving spouses. It chose not to grant equivalent benefits to widowers. It chose to achieve equality by the creation of a new and more limited system. The effect of the claimants’ submissions that the court should compel the Secretary of State to make extra-statutory payments is to require the court to usurp the role of Parliament in a manner recognised as impermissible by Lord Bridge in Steele Ford (q.v. supra).
- Parliamentary sovereignty is preserved, contends Mr. Sales, by the operation of Section 6(2)(b). In declining to exercise his power to make extra-statutory payments to widowers, it is contended that the defendant was acting “so as to give effect to” the relevant provisions of the 1992 Act. The power to make extra-statutory payments cannot be converted into a duty.
- Mr. Goudie QC contends, in response, that no issue arises as to whether the defendant was acting so as to give effect to the provisions of the 1992 Act. Thus, Mr. Sales’s submissions misfire. No question arises as to whether the defendant was acting so as to give effect to the provisions of the 1992 Act unless there exists:-
“Primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights.”
- In this case that first limb of Section 6(2)(b) is not satisfied. The primary legislation contained in the 1992 Act can be read in a manner compatible with the Convention because there is an accepted power to act compatibly with the claimants’ rights by making an extra-statutory payment to them. Section 6(2)(b) only applies where any exercise of the power would involve a breach of Convention rights (see Grosz Beatson & Duffy, Human Rights: The 1998 Act and the European Convention ).
- Thus the defendant’s submissions in relation to the second limb of Section 6(2)(b) of the 1998 Act are irrelevant.
- These rival submissions rely upon dicta in three cases. Two of those cases, R v (Holding and Barnes PLC) v SSETR now known as Alconbury  JPL 291 and R v Kansal (q.v. supra ) support the proposition in Grosz :-
“If any exercise of the power would involve a breach of Convention rights, the position is covered by the second part of the exception in Section 6(2)(b)……”
- The third case, Friends Provident Life Office v SSETR [19.10.2001] demonstrates the converse of the proposition: Section 6(2)(b) may not be relied upon where the power may, in some circumstances, be acted upon in a manner compatible with the Convention. I turn to these three cases in greater detail.
- In Kansal, the appellant and intervener sought to finesse Section 6(2)(b) by contending that where a statute confers a power, compatibility may be achieved by refraining from exercising the power altogether. Section 433 of the Insolvency Act 1986 authorised, but did not compel, a prosecutor to use evidence obtained as a result of compulsory questioning. It was argued that effect could be given to Section 433 of the 1986 Act by exercising a choice not to adduce such evidence. Lord Hope responded:-
“In my opinion, however, the question whether or not the prosecutor was giving effect to Section 433 of the 1986 Act within the meaning of Section 6(2)(b) does not depend on whether he had a discretion as to whether or not to use these answers in evidence. The question is whether, having decided to use the answers and invite the judge to hold them to be admissible, he is doing what he was authorised to do by Section 433. It seems to me that there can only be one answer to this question. According to the traditional rules of construction by reference to which at the time that provision was to be interpreted, Section 433 authorised him to lead and to rely on that evidence. He was entitled also to give effect to Section 433 by asking the judge to hold that in terms of that section, the evidence was admissible.” (see paragraph 88).
- Kansal is an example of a case where exercise of the power conferred by the statutory provision would inevitably lead to incompatibility with the Convention.
- In the Divisional Court in Alconbury  JPL 291, the court considered the power of the Secretary of State to call in planning appeals under Section 77 of the Town & Country Planning Act 1999. In certain planning appeals the Secretary of State had a discretion as to whether the planning application should be called in. This was not an issue which fell for decision by the House of Lords in the light of their conclusion that the Secretary of State’s function in deciding appeals was not incompatible with Article 6. The Divisional Court concluded that once a planning application was called in, a breach of Article 6 would be inevitable. The power to call in could never be exercised in a way which was compatible with Convention rights. Accordingly the court concluded:-
“We do not think it is legitimate to read down a legislative provision so as to extinguish it.”
- Both cases are examples of powers which could only be given effect to in a manner which was incompatible with the Convention and thus engaged Section 6(2)(b).
- But there will be cases where the exercise of a power will not necessarily lead to incompatibility and thus “reading down” the legislative provision conferring the power will not extinguish it. The observations of Forbes J. in Friends Provident Life Office illustrate that proposition. In that case the court considered the power of the Secretary of State to refuse to call in a planning application. Part of Forbes J’s judgment (which did not fall strictly for decision in the light of his conclusions on other issues) highlights the importance of considering whether a discretion, conferred by a statute, must inevitably be extinguished in order to achieve compliance with the Convention. The claimant successfully contended that the Secretary of State’s discretion to refuse to call in a planning application under Section 77 would not be removed. He did not always have to call in a planning application to ensure compliance with Article 6. The obligation to call in a planning application so as to ensure compliance with Article 6 would only arise in some cases, for example, where there were significant issues of fact to be decided. Thus the discretion remained largely intact. Forbes J. agreed that not every refusal by the Secretary of State to exercise his discretion to call in a planning application would necessarily be incompatible with Article 6. Thus Section 6(2)(b) did not arise. (See paragraphs 98 and 100). Friends Provident is an example of a case where legislative provisions conferring power can be given effect to in a compatible manner, whilst preserving, and not destroying, the discretion conferred by the statute.
- This case differs from Alconbury and Kansal. The legislative provisions impose a duty to grant benefits to widows. But a power exists to give benefits to widowers. In the other cases no duty was imposed, but a power was conferred which, if exercised, would inevitably lead to incompatibility. Compatibility could only be achieved by refraining from the exercise of the power. In the instant case, the power, if exercised, would lead to compatibility but refraining from exercise of the power would lead to incompatibility. However, all three cases share an important feature. Compatibility can only be achieved by removing the power conferred by statute altogether. It is that feature which satisfied the first limb in Section 6(2)(b). In Kansal and Alconbury, the primary legislation was incompatible with the Convention because compatibility could only be achieved by removing all choice. In Kansal the prosecution would have been compelled not to adduce the evidence obtained under compulsion. In Alconbury compatibility could only be achieved by removing the power to call in the planning application and imposing a duty not to do so. By way of contrast, in Friends Provident, the power was not removed because there were cases where it could be exercised in a manner compatible with the Convention.
- In the instant case, it seems to me that the fatal flaw in the claimants’ argument is that its effect is to convert the power to make an extra-statutory payment into a duty. It destroys the power altogether. There are no circumstances in which the defendant could exercise a power not to give a benefit.
- For that reason I conclude that the primary legislation is incompatible with the Convention. Whatever the nature of the power, at least it can be said that the legislation imposes no duty to give benefits to widowers and cannot be read in a way which has that effect. The Secretary of State’s refusal gives effect to those provisions and the power to make statutory allowances is irrelevant. He can rely upon Section 6(2)(b).
- This conclusion seems to me to have the merit of preserving the proper separation of powers between Parliament and the court. The importance of such separation infuses the provisions not only in Section 6(2)(b) but also in Section 6(3) and Section 6(6). I do not accept Mr. Goudie QC’s submission that Parliamentary sovereignty has already been taken into account in the consideration of the earlier arguments. The claimants’ submissions as to S.6 come, to my mind, perilously close to a submission that the court should impose a duty to grant benefits where Parliament has chosen not to do so. The defendant gives effect to the primary legislation by declining to recognise that duty.
- I conclude :-
(1) that Sections 36 - 38 SSCBA are contrary to Article 14 read with Article 8 of the Convention;
(2) that the claimants were “victims” within the meaning of section 7 of the HRA 1998, once they submitted written claims;
(3) that the defendant has objectively justified the provision of Widow’s Pension;
(4) that there was no unjustifiable discrimination within the meaning of Article 14 between widowers who brought claims in Strasbourg and the widower claimants in the instant cases;
(5) that the policy of reaching friendly settlement in Strasbourg while contesting these cases was not irrational.
(6) That sections 36 - 38 of the 1992 Act cannot be interpreted so as to entitle widowers to Widow’s Payment or Widowed Mother’s Allowance or Widow’s Pension.
(7) that the provisions of the HRA 1998 do not have effect in relation to claims made before 2 October 2000;
(8) that the defendant was not acting unlawfully, contrary to Section 6(1) of the HRA 1998.
- In those circumstances I shall make a declaration of incompatibility in relation to Sections 36 and 37 of the Social Security Contributions and Benefits Act 1992 and will hear argument as to the form of my order.
||Social Security Contributions and Benefits Act 1992 c. 4
Benefits for widows and widowers
||36.-(1) A woman who has been widowed shall be entitled to a widow's
payment of the amount specified in Schedule 4, Part II if-
(a) she was under pensionable age at the time when her late husband died, (2) The payment shall not be payable to a widow if she and a man to
or he was then not entitled to a Category A retirement
pension under section 44 below; and
(b) her late husband satisfied the contribution condition for a
widow's payment specified in Schedule 3, Part I, paragraph 4.
whom she is not married are living together as husband and wife at the
time of her husband's death.
(3) A widow's payment is payable only in cases where the husband dies
on or after 11th April 1988 (the coming into force of section 36(1) of the
1986 Act, which introduced the widow's payment by making provision
corresponding to this section).
|37.-(1) A woman who has been widowed shall be entitled to a
widowed mother's allowance at the rate determined in accordance with
section 39 below if her late husband satisfied the contribution conditions
for a widowed mother's allowance specified in Schedule 3, Part I,
paragraph 5 and either-
(a) the woman is entitled to child benefit in respect of a child falling(2) A child falls within this subsection if one of the conditions specified
(b) the woman is pregnant by her late husband; or
(c) if the woman and her late husband were residing together
immediately before the time of his death, the woman is pregnant
as the result of being artificially inseminated before that time
with the semen of sonic person other than her husband, or as the
result of the placing in her before that time of an embryo, of an
egg in the process of fertilisation, or of sperm and eggs.
in section 81(2) below is for the time being satisfied with respect to the
child and the child is either-
(a) a son or daughter of the woman and her late husband; or(3) The widow shall not be entitled to the allowance for any period
(b) a child in respect of whom her late husband was immediately
before his death entitled to child benefit; or
(c) if the woman and her late husband were residing together
immediately before his death, a child in respect of whom she was
then entitled to child benefit.
after she remarries, but, subject to that, she shall continue to be entitled
to it for any period throughout which she satisfies the requirements of
subsection (1Ka), (b) or (c) above.
(4) A widowed mother's allowance shall not be payable-
(a) for any period falling before the day on which the widow's38.-(1) A woman who has been widowed shall be entitled to a widow's pension at the rate determined in accordance with section 39 below if her late husband satisfied the contribution conditions for a widow's pension specified in Schedule 3; Part 1, paragraph 5 and either-
entitlement is to be regarded as commencing for that purpose by
virtue of section 5(l)(k) of the Administration Act; or
(b) for any period during which she and a man to whom she is not
married are living together as husband and wife.
(a) she was, at the husband's death, over the age of 45 but under the(2) The widow shall not be entitled to the pension for any period after
age of 65; or
(b) she ceased to be entitled to a widowed mother's allowance at a
time when she was over the; age of 45 but under the age of 65.
she remarries, but, subject to that, she shall continue to be entitled to it
until she attains the age; of 65.
|(3) A widow's pension shall not be payable-
(a) for any period falling before the day on which the widow's (4) In the case of a widow whose late husband died before 11th April
entitlement is to be regarded as commencing for that purpose by
virtue of section 5(lxk) of the Administration Act;
(b) for any period for which she is entitled to a widowed mother's
(c) for any period during which she and a man to whom she is not
married are living together as husband and wife.
1988 and who either-
subsection (1) above shall have effect as if for "45" there were substituted "40".
(a) was over the age of 40 but under the age of 55 at the time of her
Rate of widowed
husband's death; or
(b) is over the age of 40 but under the age of 55 at the time when she
ceases to be entitled to a widowed mother's allowance,
39.-(1) The weekly rate of-
(a) a widowed mother's allowance,(2) In the application of sections 44 and 45 below by virtue of
(b) a widow's pension,
shall be determined in accordance with the provisions of sections 44 and
45 below as they apply in the case of a Category A retirement pension,
but subject, in particular, to the following provisions of this section and
section 46(2) below.
subsection (1) above-
(a) where the woman's husband was over pensionable age when he(3) In the case of a woman whose husband dies after 5th April 2000
died, references in those. sections to the pensioner shall be taken
as references to the husband, and
(b) where the husband was under pensionable age when he died,
references in those sections to the pensioner and the tax year in
which he attained pensionable age shall be taken as references
to the husband and the tax year in which he died..
the additional pension falling to be calculated under sections 44 and 45
below by virtue of subsection (1) above shall (before making any
reduction required by subsection (4) below) be one half of the amount
which it would be apart from this subsection.
(4) Where a widow's pension is payable to a woman who was under the
age of 55 at the time when the applicable qualifying condition was
fulfilled, the weekly rate of the pension shall be reduced by 7 per cent. of
what it would be apart from this subsection multiplied by the number of
years by which her age at that time was less than 55 (any fraction of a year
being counted as a year).
(5) For the purposes of subsection (4) above, the time when the
applicable qualifying condition was fulfilled is the time when the woman's
late husband died or, as the case may be, the time when she ceased to be
entitled to a widowed mother's allowance.
(6) In the case of a widow whose late husband died before 11th April
1988 and who either-
(a) was over the age of 40 but under the age of 55 at the time of her
husband's death; or
(b) is over the age of 40 but under the age of 55 at the time when she
teases to be entitled to a widowed mother's allowance,
subsection (4) above shall have effect as if for "55" there were substituted
"50", in both plates where it occurs.
||Welfare Reform and Pensions Act 1999 c. 30 1729
Benefits for widows and widowers
||54.-(1) For section 36 of the Contributions and Benefits Act there
shall be substituted-
36.-(1) A person whose spouse dies on or after the(2) In Schedule 4 to the Contributions and Benefits Act (rates of
appointed day shall be entitled to a bereavement
(a) either that person was under pensionable age at(2) A bereavement payment shall not be payable to a
the time when the spouse died or the spouse was
then not entitled to a Category A retirement
pension under section 44 below; and
(b) the spouse satisfied the contribution condition
for a bereavement payment specified in
Schedule 3, Part I, paragraph 4.
person if that person and a person of the opposite sex to
whom that person was not married were living together as
husband and wife at the time of the spouse's death.
(3) In this section "the appointed day" means the day
appointed for the coming into force of sections 54 to 56 ofthe Welfare Reform and Pensions Act 1999."
benefits etc.), for Part II there shall be substituted--
Bereavement payment. £2,000.00".
|New allowances for bereaved
|55.--(1) After section 36 of the Contributions and Benefits Act there
shall be inserted
Cases in which
sections 37 to 41
36A.-(1) Sections 37 to 39 and section 40 below apply (2) After section 39 of the Contributions and Benefits Act there shall be inserted-
only in cases where a woman's husband has died before
the appointed day, and section 41 below applies only in
cases where a man's wife has died before that day.
(2) Sections 39A to 39C below apply in cases where a person's spouse dies on or after the appointed day, but section 39A also applies (in accordance with subsection (1)(b) of that section) in cases where a man's wife has died before that day.
(3) In this section, and in sections 39A and 39B below, "the appointed day" means the day appointed for the coming into force of sections 54 to 56 of the Welfare Reform and Pensions Act 1999."
39A.-(1) This section applies where
(a) a person whose spouse dies on or after the(2) The surviving spouse shall be entitled to a widowed parent's allowance at the rate determined in accordance with section 39C below if the deceased spouse satisfied the contribution conditions for a widowed parent's
appointed day is under pensionable age at the
time of the spouse's death, or
(b) a man whose wife died before the appointed day-
(i) has not remarried before that day, and
(ii) is under pensionable age on that day.
allowance specified in Schedule 3, Part I, paragraph 5
(a) the surviving spouse is entitled to child benefit in respect of a child falling within subsection (3) below; or-
(b) the surviving spouse is a woman who either-
(i) is pregnant by her late husband, or
(ii) if she and he were residing together immediately before the time of his death, is pregnant in circumstances falling within section 37(1)(c) above.
(3) A child falls within this subsection if one of the y
conditions specified in section 81(2) below is for the time
being satisfied with respect to the child and the child is
(a) a son or daughter of the surviving spouse and the(4) The surviving spouse shall not be entitled to the
deceased spouse; or
(b) a child in respect of whom the deceased spouse
was immediately before his or her death entitled
to child benefit; or
(c) if the surviving spouse and the deceased spouse
were residing together immediately before his or
her death, a child in respect of whom the
surviving spouse was then entitled to child
allowance for any period after she or he remarries, but,
subject to that, the surviving spouse shall continue to be
entitled to it for any period throughout which she or he-
(a) satisfies the requirements of subsection (2)(a) or(5) A widowed parent's allowance shall not be
(b) above; and
(b) is under pensionable age.
(a) for any period falling before the day on which the
surviving spouse's entitlement is to be regarded
as commencing by virtue of section 5(1)(k) of
the Administration Act; or G
(b) for any period during which the surviving spouse and a person of the opposite sex to whom she or he is not married are living together as husband and wife.
where no dependent
39B.-(1) This section applies where a person whose
spouse dies on or after the appointed day is over the age
of 45 but under pensionable age at the spouse's death.
(2) The surviving spouse shall be entitled to a
bereavement allowance at the rate determined in
accordance with section 39C below if the deceased spouse
satisfied the contribution conditions for a bereavement !
allowance specified in Schedule 3, Part I, paragraph 5.
(3) A bereavement allowance shall be payable for not
more than 52 weeks beginning with the date of the
spouse's death or (if later) the day on which the surviving
spouse's entitlement is to bg regarded as commencing by
virtue of section 5(1)(k) of the Administration Act.
(4) The surviving souse shall not be entitled to the
allowance for any period after she or he remarries, but,
subject to that, the surviving spouse shall continue to be
entitled to it until--
(a) she or he attains pensionable age, or
(b) the period of 52 weeks mentioned in subsection (3) above expires,
whichever happens first.
(5) The allowance shall not be payable-
(a) for any period for which the surviving spouse is
entitled to a widowed parent's allowance; or
(b) for any period.during which the surviving spouse
and a person of the opposite sex to whom she or
he is not married are living together as husband
||Rate of widowed
39C.-(1) The weekly rate of a widowed parent's
allowance shall be determined in accordance with the
provisions of sections 44 to 45A below as they apply in the
case of a Category A retirement pension, but subject, in
particular, to the following provisions of this section and
section 46(2) below.
(2) The weekly rate of a bereavement allowance shall
be determined in accordance with the provisions of
section 44 below as they apply in the case of a Category
A retirement pension so far as consisting only of the basic
pension referred to in subsection (3)(a) of that section, but
subject, in particular, to the following provisions of this
(3) In the application of sections 44 to 45A or (as the
case may be) section 44 below by virtue of subsection (1)
or (2) above-
(a) where the deceased spouse was over pensionable
age at his or her death, references in those
sections to the pensioner shall be taken as
references to the deceased spouse, and
(b) where the deceased spouse was under
pensionable age at his or her death, references in
those sections to the pensioner and the tax year
in which he attained pensionable age shall be
taken as references to the deceased spouse and
the tax year in which he or she died.
(4) Where a widowed parent's allowance is payable to
a person whose spouse dies after 5th April 2000, the
additional pension falling to be calculated under sections
44 to 45A below by virtue-of subsection (1) above shall be
one half of the amount which it would be apart from this
(5) Where a bereavement allowance is payable to a
person who was under the age of 55 at the time of the
spouse's death; the weekly rate of the allowance shall be
reduced by 7 per cent. of what it would be apart from this
subsection multiplied by the number of years by which
that person's age at that time was less than 55 (any
fraction of a year being counted as a year)."