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Judgments - Regina v. Secretary of State for Work and Pensions (Appellant) ex parte Hooper and others (FC) (Respondents)


SESSION 2004-05
[2005] UKHL 29
on appeal from: [2003] EWCA Civ 813




Regina v. Secretary of State for Work and Pensions (Appellant) ex parte Hooper and others (FC) (Respondents)

Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Hooper (Appellant) and others

Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Hooper and others (FC) (Appellants)

(Conjoined Appeals)



The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood




Regina v. Secretary of State for Work and Pensions (Appellant) ex parte Hooper and others (FC) (Respondents)

Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Hooper (Appellant) and others

Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Hooper and others (FC) (Appellants)

(Conjoined Appeals)

[2005] UKHL 29


    1.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow the appeals of the Secretary of State and dismiss the appeals of the widowers.

    2.  I add a note on one point, concerning the claims in respect of widow's payment and widowed mother's allowance under sections 36 and 37 of the Social Security Contributions and Benefits Act 1992. The widowers' claim is that non-payment of corresponding amounts to them was unlawful discrimination. Non-payment of these amounts to them, it is said, violated their Convention right under article 14 read with article 1 of Protocol 1. Accordingly the Secretary of State's failure to make corresponding payments to widowers was unlawful under section 6(1) of the Human Rights Act 1998. By failing to make such payments the Secretary of State acted incompatibly with the claimants' Convention right.

    3.  The Secretary of State's primary defence to this claim lies in section 6(2) of the Human Rights Act. Your Lordships are all of the opinion that this defence is well-founded. I agree. There is a measure of disagreement on whether the applicable paragraph of section 6(2) is paragraph (a) or paragraph (b). In my view it is not necessary to decide which is the applicable paragraph in this case and there is good reason for not doing so. It is not necessary because it is clear that one paragraph or the other is applicable. It is not desirable because a decision on which paragraph is applicable cannot be reached without first deciding a legal point which is better left for decision on another occasion.

    4.  Let me explain. Whether the limb of section 6(2) applicable in the present case is paragraph (a) or paragraph (b) depends upon the view taken of the Secretary of State's common law powers. That is the starting point. Under the Social Security Contributions and Benefits Act 1992 Parliament made provision for payment of benefits to widows, but not widowers. The parliamentary intention in this regard was abundantly clear. If the effect of this statutory provision was that thereafter the Secretary of State acting on behalf of the Crown could not lawfully have made corresponding payments to widowers in exercise of the Crown's common law powers, then the present case would fall squarely within section 6(2)(a). If the Secretary of State could not lawfully have made corresponding payments to widowers he could not have acted otherwise than he did.

    5.  The Secretary of State, however, does not contend he lacked power to make corresponding payments to widowers and that therefore the case falls within paragraph (a). Mr Sales submitted that the Secretary of State, acting on behalf of the Crown, had power and retained power to make such payments. Mr Goudie QC, of course, made a similar submission. Indeed, the foundation of the widowers' case is that the Secretary of State had such a power. The widowers' case is that the Secretary of State had such a power and, unlawfully, failed to exercise it.

    6.  Whether the Crown, in exercise of its common law powers, could lawfully have made corresponding payments to widowers is a difficult question with far-reaching constitutional implications. I prefer to express no view on this issue in the absence of fuller argument. This issue would be better decided in a case where, unlike the present case, the contrary argument is presented. This issue does not call for decision in the present case because, either way, section 6(2) provides a defence for the Secretary of State. If the Secretary of State could not lawfully have paid the widowers the case falls within paragraph (a) as already mentioned. If the Secretary of State could lawfully have made corresponding payments to widowers the case falls within section 6(2)(b). Section 6(2)(b) provides that section 6(1) does not apply to an act if the authority was acting so as to give effect to a provision in primary legislation. Clearly, in making payments to widows the Secretary of State was giving effect to sections 36 and 37 of the Social Security Contributions and Benefits Act 1992. Likewise in not making corresponding payments to widowers the Secretary of State was giving effect to those statutory provisions. Sections 36 and 37 make provision for payments to widows alone. If the Secretary of State were asked 'Why are you not making similar payments to widowers?' he would have answered 'Because the statute provides these payments should be made to widows and makes no provision for payments to widowers'. The fact that the Secretary of State could lawfully have made corresponding payments to widowers does not detract from the crucial fact that in declining to pay widowers he was 'giving effect' to the statute.


My Lords,


    7.  The four claimants are widowers. Mr Hooper's wife died on 27 March 1997. Mr Withey's wife died on 26 November 1996. Mr Martin's wife died on 11 September 2000. Mr Naylor's wife died on 2 July 1995. All except Mr Naylor had dependent children at the time of bereavement.

    8.  If the claimants had been widows, they would have been entitled to claim widow's benefits. Under section 36(1) of the Social Security Contributions and Benefits Act 1992 they would have been entitled to claim a widow's payment ("WPt") of £1,000. Under section 37, all except Mr Naylor would have been entitled to claim widowed mother's allowance ("WMA"), a weekly sum payable until such time as the children ceased to be dependent. Under section 38, Mr Naylor would have been entitled to claim a widow's pension ("WP").

    9.  The widowers submit that in denying them the benefits which would have been payable to widows, the Secretary of State for Work and Pensions has acted in a way which is incompatible with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the European Convention on Human Rights. Under article 14 they have the right to enjoyment of the rights and freedoms "set forth in this Convention" without discrimination on grounds of sex. One of those rights is the "peaceful enjoyment of possessions" protected by article 1 of Protocol 1 and another is the respect for family life protected by article 8. A widow's benefit is a pecuniary right generated by the national insurance contributions of the husband and its object is the enhancement of family life. The widowers therefore say that if the state provides such benefits, it must do so without discrimination on grounds of sex. Before the judge (Moses J) the Secretary of State accepted only that WMA fell within the ambit of article 8 but the judge found that all three benefits did so. On the other hand, he rejected the argument that they fell within article 1 of Protocol 1. In the Court of Appeal and before your Lordships the Secretary of State has accepted that all widow's benefits fall within the ambit of one or both of the Convention rights.

    10.  The widowers accept that in respect of the acts or omissions of the Secretary of State which occurred before the Human Rights Act 1998 came into force on 2 October 2000, they can make no complaint in domestic law. But they submit that in denying them the benefits which a widow would have received after that date, the Secretary of State has acted incompatibly with their Convention rights and therefore contrary to section 6(1):

    "It is unlawful for a public authority to act in a way which is incompatible with a Convention right".

    11.  The widowers say that they are victims of the Secretary of State's unlawful acts or omissions and are therefore entitled to bring proceedings under section 7(1)(a).

    12.  To these claims, the Secretary of State raises two principal defences. The first, in response to Mr Naylor's claim, is that discrimination between men and women in the payment of WP was and continues to be objectively justified. The second, in response to the claims of the other three widowers, is that although discrimination in the payment of WPt and WMA did in principle infringe the Convention rights of widowers, it was not unlawful under section 6(1) because the application of that subsection was excluded by section 6(2):

    "Subsection (1) does not apply to an act if—

    (a)  as the 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."

    13.  Thus the question of objective justification for WP and whether section 6(2) excludes a claim in respect of WPt and WMA are the two chief issues in this appeal. In addition, there are some subsidiary questions, to which I shall later return, as to whether the individual widowers would have qualified for benefits even if they had been widows: questions which go either to the legality of the Secretary of State's refusal to pay them or to whether they qualify as victims.

    14.  Before the 1998 Act came into force, some other widowers petitioned the European Court of Human Rights in Strasbourg for redress. In the lead case of Willis v United Kingdom (2002) 35 EHRR 547 the court found that discrimination in the payment of WPt and WMA infringed the rights conferred by article 14 read with article 1 of Protocol 1 but made no finding about WP. The court awarded Mr Willis £25,000 by way of just satisfaction. In a number of other cases, the Government followed a policy of agreeing to make extra-statutory payments by way of friendly settlement to applicants whose cases were declared admissible. Since the 1998 Act came into force and pending the resolution of this litigation, the Government has made no more payments but has resisted proceedings in Strasbourg on the ground that the applicant has not exhausted his domestic remedies. The widowers claim that the Government's refusal to make extra-statutory payments to them in the same way as to earlier Strasbourg applicants is itself a form of discrimination contrary to article 14. I shall deal with that argument last.

    15.  The period for which the Secretary of State is alleged to have been in breach of section 6(1), at any rate in respect of WPt and WMA, did not last very long. The Welfare Reform and Pensions Act 1999 abolished widow's benefits for widows whose husbands died on or after 9 April 2001. WPt was replaced by a bereavement payment of £2,000, WMA by a widowed parent's allowance and WP by a bereavement allowance payable for 52 weeks. All three benefits were payable to widows and widowers alike. Thus widowers achieved equality with widows but widows bereaved on or after 9 April 2001 no longer had the right to a pension for life to which they would have been entitled under the previous legislation. The rights of existing widows to WP were preserved.

    Objective justification for widows' pensions

    16.  In considering whether discrimination between men and woman in the payment of WP was objectively justified, two points must be kept in mind. The first is that WP was never a means tested benefit. It was paid to all widows who satisfied the age qualification on bereavement or upon the cessation of WMA, irrespective of whether they were in employment or receiving a private pension or other income. Its justification therefore did not depend upon the greater need of any particular widow but upon a perception that older widows as a class were likely to be needier than older widowers as a class or, for that matter, younger widows as a class. No doubt means testing would have been more discriminating but the use of more complicated criteria increases the expense of administration and reduces take-up by those entitled.

    17.  The second point is that there has never been any social or economic justification for extending WP to men under pensionable age. The argument for WP was that in the social conditions which prevailed for most of the last century, it was unusual for married women to work and that it was unreasonable to expect them to be equipped to earn their own living if they were widowed in middle age. This argument self-evidently did not apply to men. The position was not quite the same in relation to WMA because there were slightly stronger arguments for saying that a man who might have to give up or reduce his work to look after dependent children should be treated in the same way as a widowed mother. It is not necessary to go into the counter-arguments (for example, that mothers bringing up children alone for reasons other than widowhood are usually in an even weaker position: see the Finer Committee on One-Parent Families (1974) Cmnd 5629 Vol. 1, pp. 283-284) because neither the Government in Strasbourg nor the Secretary of State before your Lordships has argued that discrimination in the payment of WPt and WMA was objectively justified in the last few years of the twentieth century. Both benefits were extended to men by the 1999 Act, which was passed to the accompaniment of ministerial statements that the existing system was unfair and "woefully out of date". But WP was not extended to men. It was for practical purposes abolished; replaced by a 52 week bereavement allowance to both sexes to ease the transition to single status. So the question in the case of WP is not so much whether there was justification for not paying it to men as whether there was justification for not having moved faster in abolishing its payment to women.

    18.  With these two considerations in mind, I shall summarise the history of widow's pensions. They were first introduced by the Widows', Orphans' and Old Age Contributory Pension Act 1925. The Act provided a pension of 10 shillings a week to any widow whose husband had paid sufficient contributions. There was no age qualification or time limit on payment. Widows were as such entitled to support. But during the Second World War, large numbers of women worked in the armed forces or civilian employment, replacing men on active service. Public attitudes to widowhood changed. Sir William Beveridge said in his 1942 Report on Social Insurance and Allied Services (Cmd 6404, paragraph 153) that there was no reason why a childless widow should get a pension for life. If she was able to work she should do so. He recommended that all widows should be paid a 13 week transitional allowance to help them adjust to their new circumstances but that longer term pensions should be confined to widows with dependent children. The Government did not accept this advice in full. It considered that an older widow, who had in accordance with convention stayed at home during a long marriage to look after husband and children, would often be severely disadvantaged if she was required to earn her own living. The National Insurance Act 1946 therefore not only gave effect to Beveridge's recommendations by introducing WMA and a widow's allowance for 13 weeks after bereavement but also provided WP for widows who were over 50 at the date of the husband's death or who ceased to qualify for WMA when they were over 40.

    19.  The secular trend in the position of women in employment over the next half century reinforced Beveridge's view that being a widow should not, as such, entitle one to a pension. More and more women entered the labour market. But the trend was a slow one and crude comparisons of the numbers of economically active men and women are misleading. Far more women than men worked part-time and the great majority of women were (and remain) unable to escape from the traditional low-paid activities of cooking, caring and cleaning. So the trend to equality was counteracted by political pressure from groups representing widows who claimed that, as the United Kingdom became more prosperous, benefits for widows should be increased rather than reduced. The policies pursued by successive governments were therefore not entirely consistent. The Family Allowances and National Insurance Act 1956 raised to 50 the age at which a woman could claim WP after ceasing to be entitled to WMA. On the other hand, the National Insurance (Old persons' and widows' pensions and attendance allowance) Act 1970 reduced to 40 the age at which WP would be payable (at a reduced rate), whether as a result of bereavement or the cessation of WMA..

    20.  In 1985 the government published a Green Paper on Social Security Reform which pointed out (in paragraph 10.9) that the current system of benefits dated from days when far fewer married women worked:

    "Today two thirds of all married women with children over school age, and over a half of widows between 40 and 60, go to work. The present pattern of benefits nonetheless provides support without regard to widows' other income, in many cases long after they have ceased to be responsible for bringing up children. The Government's view is that it is right to give greater emphasis to providing for widows of working age who have children to support, and for older widows less able to establish themselves in work."

    21.  Despite this acknowledgement of changes in social conditions, the Social Security Act 1986 made relatively modest adjustments to the system. The 26 week transitional widow's allowance was abolished and the lump sum WPt of £1,000 substituted. The age at which WP became payable, whether on bereavement or cessation of WMA, was raised to 45 and entitlement to the full rate postponed until 55. These provisions were subsequently consolidated in the 1992 Act.

    22.  The 1986 changes were opposed by a strong lobby on behalf of widows. But no one suggested in the course of the Parliamentary debates that WP should be extended to men. It is true that Cruse, a non-governmental organisation for "the widowed and their children", which had taken widowers on board in 1980, said in their 1986-87 annual report:

    "We … continued to press for a widower's pension, based on his wife's national insurance contributions, and for an allowance to be paid to widowed fathers."

    23.  But this pressure does not appear to have persuaded anyone to raise the question of WP for widowers in Parliament. The first serious suggestion that widowers should in principle be paid the same benefits as widows came from the European Commission. There had been a Council Directive 79/7/EEC in 1978 on "the progressive implementation of the principle of equal treatment for men and women in matters of social security" which expressly excluded survivors' benefits. In 1987 the Commission produced a proposal for a new Directive (Com (87) 494 Final). It drew attention in an explanatory memorandum to statement of the Court of Justice in Razzouk and Beydoun v Commission of the European Communities (Cases 75/82 and 117/82), [1984] ECR 1509, 1530, para 16 (a case concerning survivors' pensions under the Community's own Staff Regulations) that the principle of equal treatment of men and women "forms part of the fundamental rights the observance of which the court has a duty to ensure." Article 4 of the draft Directive provided that there should be no discrimination on grounds of sex in the payment of survivorship benefits:

    "and to this end:

    (a)  either the recognition on the same terms for widowers of entitlement to the pensions and other benefits provided for widows;

    (b)  or the replacement of widows' benefits by the creation or extension of a system of individual rights open to all surviving spouses regardless of sex."

    24.  The House of Lords Select Committee on the European Communities (Sub-Committee C) held an inquiry into the proposal in 1989. Miss Joan C. Brown, a writer on social security matters, said in evidence to the Committee that there was no case for paying older widowers the same pensions as older widows. The only way to produce equality was to level down. But hasty action would cause real hardship to large numbers of older widows who had chosen many years earlier to follow the conventional path of staying home to look after husband and children:

    "the effect of earlier social patterns on women still have to be worked through. This suggests the need to phase out the older widow's pension over a long period - in the order of 10-15 years. Without this, there would be a serious risk of poverty among older widows who had followed the social norms of their day and now find themselves at a severe disadvantage in a changed world as a result."

    25.  The Select Committee accepted Miss Brown's evidence and reported (Session 1988-89, 10th Report, HL Paper 51):

    "87.  … In the United Kingdom…there might be reluctance to reproduce for widowers the pension a childless widow can receive under the national insurance scheme, irrespective of her earnings, if she is aged 45 or more when her husband dies. This is in recognition of the difficulty the widow may find in re-establishing herself in the labour market- whereas a widower's earning ability would not ordinarily be prejudiced in this way.

    88.  The Committee consider that, despite these difficulties, the concept of equal treatment must require that, eventually, men and women should be provided with survivors' benefits on the same terms. Employment patterns are changing and, if it becomes the norm for married couples to be dependent on the earnings of both partners for most of their working lives, it will make sense for equal survivors' benefits to be available. There is also a need to avoid putting families at a disadvantage if the mother, rather than the father, becomes the principal breadwinner. It would, however, be perverse to deprive widows of benefits they still need in the interests of sex equality. To reduce this danger, a substantial period should be allowed - at least 15 years - before Member States are obliged to equalise survivors' benefits. Community law recognises a principle of 'legitimate expectation' which would support this approach."

    26.  The Government published its response on 4 April 1990 (Cm 1038). It said at para 15:

    "Within the state social security system the Government do not think there is any merit in introducing a universal state insurance benefit for widowers on a par with those currently provided for widows. To extend the current provisions for widows to widowers would cost about £350 million a year. The available evidence indicates that widowers are more likely to be in full time work than widows, are more likely to have higher earnings than widows and are less likely to have dependent children. As a consequence the Government have made it clear to the Commission that the equalisation of survivors' benefits should be removed from this draft directive entirely."

    27.  In 1991 the Commission withdrew the draft directive pending further consultation with Member States and there has been no further European Union initiative on the question.

    28.  Mr Cox QC, on behalf of Messrs Withey, Martin and Naylor, said that there was no evidence that the Government had given consideration to the equalisation of survivorship benefits before 1998. But this is not the case. Not only was there a full investigation by the Select Committee, followed by a Government response, but over the next few years the question of paying WMA to widowed fathers was raised on more than one occasion (see, for example, a Private Member's Bill introduced by Mr Hartley Booth MP on 13 April 1994 (Hansard HC Debates (6th Series) vol 241, cols 212-213) and a Written Answer by the Secretary of State for Social Security (Hansard HC Deb (6th Series) vol 255, 1 March 1995, col 621)). No one suggested paying WP to widowers or, unsurprisingly, abolishing WP for widows. Cruse said in evidence in these proceedings that Mr Hartley Booth's decision to confine his Private Member's Bill to WMA was "tactical" but the need for such tactics suggests that there would have been little support for anything more.

    29.  The abolition of WP came as part of a wider reform of survivorship and other social security benefits in the 1999 Act. It was preceded in 1998 by a Consultation Paper which drew attention to the fact that, in 1995, 7 out of 10 married women worked compared with 1 in 8 in 1946. Half of widows under 60 worked and 47% of widows now had income from occupational pension schemes. The Government took the view that widows without dependent children no longer needed long term support. The extension of WP to men was "not acceptable": it would cost another £250 million a year and would mean giving help to people who were, as a class, unlikely to need it.