Memorandum submitted by Brian Havard (DM 02)


1.0* Is DWP effectively addressing official error?


1.1 No. The policy discriminating against half the expatriate pensioners is in error. The English courts at all levels rejected an application for judicial review of the policy which denies pensions uprating to half the expatriates (save for Lord Carswell), insisting that Parliament must resolve the problem it had itself created. A first hearing in Strasbourg accepted the UK Government reliance on tortuous legislation of doubtful provenance (while yet again there was a dissenting judgment from the Court's President who strongly favoured the pensioner cause) but it has now been agreed that the case shall be heard again in the Grand Chamber.

1.2 All these legal efforts have focused on how the policy breaches the European Convention on Human Rights which is largely based on incisive moral precepts. My concern now is the parliamentary mechanism whereby the DWP policy of denying state pension uprating to half the expatriate pensioners is perpetuated annually by the Social Security Benefit Uprating Regulations in association with the Persons Abroad Regulations. Though the policy has been in application for three decades, as you see from the first attachment, it has taken a distinguished judge to identify what Parliamentarians have missed (or perhaps ignored), that the Regulations - as I have long insisted - are not "within the scope of the enabling power in the parent Act'.

1.3 This breach could perhaps have been mitigated if standard procedure had required the Department of Work and Pensions to submit the Regulations with a full regulatory impact assessment to the Social Security Advisory Committee; their claim that 'no impact on the private or voluntary sectors is foreseen' would have at once been exposed as absurd. The second and third attachments, being my FOI exchange with DWP, establish that no impact assessment has ever been produced, and the Department has no definition for 'private and voluntary sectors'. The DWP has no obligation to submit for scrutiny Regulations which involve uprating; they go through on the nod, despite discrimination adversely affecting half a million expatriate pensioners, and for those victims in their eighties and nineties, freezing what in any case is a shamefully meagre pension, the residual purchasing power becoming nugatory.

1.4 Legislative power is delegated inappropriately while its exercise is subjected to an inappropriate, inadequate degree of parliamentary scrutiny - in fact to virtually none at all. There is quite clearly a loophole in parliamentary legislative procedures when - as Lord Justice Cornwath scathingly observed - a Department can produce Regulations which involve in effect tearing up the section [of the parent legislation] and starting again with a different scheme. It seems surprising, and possibly objectionable in principle, that such a radical change of approach should have been effected without direct Parliamentary sanction, a typically mild observation from a judge who has discovered serious maladministration but would not condemn it outright because that issue was not before him.

1.5 The objective must be to have the present Regulations declared ultra vires. If DWP then wishes to re-establish its discrimination, it must do so only if the House approves and after the Department has produced an impact assessment including an explanation of why it foresees no impact on the private or voluntary sectors when it knows full well that, with each passing year, many elderly frozen pensioners are one step nearer penury.

1.6 I hope your Committee will recommend a revised system where any legislation - primary or secondary - which adversely affects so large a number of people must undergo the closest scrutiny, first by the House as to its acceptability in principle, and then each subsequent year by the Social Security Advisory Committee, or preferably some other agency entirely separated from the parent Department, as to implementation.

2.0 * How effective are the Upper Tribunal Judges (formerly Social Security Commissioners)?

2.1 Grossly ineffective. In my appeal dated 9.11.2000 N.I.No. BB573422A, the Commissioner was only interested in applying the law, not at all in examining whether the law was in conflict with the Human Rights Act.


10 July 2009