Written evidence
1. Letter from the Committee Chair, to Rt Hon
Francis Maude MP, Minister for the Cabinet Office and Paymaster
General, 13 October 2010
Superannuation Bill
The Joint Committee on Human Rights is considering
the compatibility of the Superannuation Bill with the requirements
of human rights law.
The human rights issue which the Committee is considering
is whether limiting civil servants' compensation payments under
the CSCS is compatible with their right to peaceful enjoyment
of their possessions which is protected by Article 1 Protocol
1 to the ECHR.
The Government's view is that capping the payments
civil servants receive under the CSCS does not constitute an interference
with the right to possessions under Article 1 Protocol 1 ECHR,
for two reasons.[44]
First, the Government does not consider payments under the CSCS
to be "possessions" within the meaning of Article 1
Protocol 1. Second, even if such payments are "possessions"
within the meaning of Article 1 Protocol 1, there is no deprivation
or interference with existing possessions because the Bill's limits
on payments only apply where notice of compulsory severance is
given, or voluntary severance agreed, after the Bill comes into
force. The Government's view, in short, is that the Bill does
not engage the right to peaceful enjoyment of possessions under
Article 1 Protocol 1.
While it is correct to say that civil servants do
not have a strictly legal right to payments under the civil service
compensation scheme, they do, however, have a legitimate expectation
that they will receive such payments and that expectation is recognised
in public law. Indeed, this was an important part of the reasoning
of the High Court which led to the amended scheme being quashed.[45]
Because the expectation had long been recognised as one "which
might be relied on with full certainty", compensation payments
under the CSCS were treated by the court as accrued rights in
the same way as pension entitlements. The European Court of Human
Rights has expressly recognised that a legitimate expectation
of obtaining effective enjoyment of a property right can constitute
"possessions" within the meaning of Article 1 Protocol
1.[46]
If the limits on payments to civil servants constitute
an interference with possessions within the meaning of Article
1 Protocol 1, that interference calls for justification by the
Government. Because the Government's view is that the right to
peaceful enjoyment of possessions is not engaged by the Bill,
the Explanatory Notes do not go on to deal with the question of
whether any interference is justified.
On the assumption that the right to peaceful enjoyment
of possessions applies and is interfered with by the limits introduced
by the Bill, please provide a more detailed explanation of the
Government's justification for interfering with civil servants'
rights under Article 1 Protocol 1. I would be grateful if your
response could include an explanation of why in the Government's
view the Bill strikes the right balance between public and private
interests, how the precise limits in the Bill were decided upon,
and reassurance that the limits will not lead in any individual
cases to arbitrariness, or to a reduction so substantial that
it affects the very substance of the right.
I would be grateful if you could reply by 27 October
2010 and if an electronic copy of your reply, in Word, could be
emailed to jchr@parliament.uk.
13 October 2010
44 EN para. 18. Back
45
R (on the application of the Public and Commercial Services
Union) v Minister for the Civil Service [2010] EWHC 1027. Back
46
See e.g. Kopecky v Slovakia, Application No. 44912/98 (28
September 2004) at para. 35 ( c): "An applicant can allege
a violation of Article 1 of Protocol No. 1 only in so far as the
impugned decisions related to his "possessions" within
the meaning of this provision. "Possessions" can be
either "existing possessions" or assets, including claims,
in respect of which the applicant can argue that he or she has
at least a "legitimate expectation" of obtaining effective
enjoyment of a property right." Back
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