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

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    30.  But the abolition of WP was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows and partly on the ground that WP was a contributory benefit and that it would be a breach of faith to deny it to the widows of men who had made contributions and arranged their affairs on the assumption that it would be available. An opposition amendment deferring the abolition of WP until 2020 was defeated but the Government agreed that the changes should not come into force until 9 April 2001 and that the rights of women bereaved before that date should be preserved.

    31.  This brief history demonstrates that the decision to achieve equality between men and women by levelling down survivors' benefits (subject to vested rights) was by no means easy or obvious. It is true that by 2000 the proportion of older women (50-59) who were "economically active" was 65.9% against 72.5% for men. But those figures must be adjusted to reflect both greater part-time working by women (44% as against 9%) and the concentration of women in low-paid occupations. The comparative disadvantage of women in the labour market had by no means disappeared.

    32.  The question then is whether the continued payment of WP to women in the period 1995-2001 and its continuation for women bereaved before 9 April 2001 was objectively justified. Moses J [2002] EWHC 191 (Admin) held that it was but the Court of Appeal [2003] EWCA Civ 813; [2003] 1 WLR 2623 thought otherwise. It is not in dispute that the jurisprudence of the European Court of Human Rights allows Member States to treat groups unequally in order to "correct factual inequalities" between them: see Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 284, para 10. Furthermore, in making decisions about social and economic policy, particularly those concerned with the equitable distribution of public resources, the Strasbourg court allows Member States a generous margin of appreciation: see James v United Kingdom (1986) 8 EHRR 123, 142, para 46. In a domestic system which (unlike the Strasbourg court) is concerned with the separation of powers, such decisions are ordinarily recognised by the courts to be matters for the judgment of the elected representatives of the people. The fact that the complaint concerns discrimination on grounds of sex is not in itself a reason for a court to impose its own judgment. Once it is accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment is no longer justified becomes a social and political question within the competence of Parliament.

    33.  Why then did the Court of Appeal decide that by 1995 there was no longer any objective justification for WP? Their three reasons were brief. First, they examined the statistics of men and women in employment and noted, at para 66, that "the change between 1995 and 2000 can be seen to be relatively modest". The figures did not span a watershed, that is to say, rise and then fall back to more or less the same level. The change was gradual, as it had been for many years.

    34.  Secondly, at para 67, the Court of Appeal quoted statements by Government spokesmen during the passage of the 1999 Act through Parliament, stressing that the old system was outdated.

    35.  Thirdly, at para 68, they drew attention to 14 European countries, together with Russia and Turkey, which had "established equal entitlement to survivors' benefits by 1995."

    36.  The first reason seems to mean that whenever Parliament decided to make the change to equalise survivors' benefits in response to the gradual historic trend towards greater economic activity by women, it would follow that for some years there had been no objective justification for the previous system. It would always be the case that the changes over the preceding few years had been relatively modest. In my respectful opinion, this proposition is fallacious. It contradicts the earlier acceptance by the Court of Appeal, at para 63, that:

    "in answering this question a very considerable margin of discretion must be accorded to the Secretary of State. Difficult questions of economic and social policy were involved, the resolution of which fell within the province of the executive and the legislature rather than the courts. In this context we revert to the fact that the issue was the point in time at which benefits which had long been enjoyed by widows should be withdrawn. No statistical formula or calculation could provide a precise answer to this question."

    37.  The Court of Appeal seems to have treated the decision of Parliament in 1999 to abolish WP from 9 April 2001 as an acknowledgement that there could have been no possible reason for the legislature not taking such a step at that time and therefore as demonstrating that it should have taken the same step at an earlier date. But in my opinion the courts are not in a position to say that the 1999 decision was inescapably right or that a different decision, whether earlier or later, would have been inescapably wrong. It was a matter for legislative judgment.

    38.  The references to what Government spokesmen said in 1999 seem to me essentially debating points. Perhaps they represented the Government's opinion, although it is fair to point out, first, that they referred not to WP in particular but to the whole survivors' benefit system, part of which is not alleged to have been objectively justified, and, secondly, that they are couched in rhetoric characteristic of a new Government changing the previous system. But the question is not what the Government thought but whether Parliament could reasonably have taken a different view, then or five years earlier.

    39.  Finally, at para 68, the Court of Appeal agreed with Moses J that the information available about the position in other Council of Europe countries did not enable the court to assess the "overall economic impact of the measures taken." In particular, we do not know whether the achievement of equality involved the withdrawal of a benefit which widows had enjoyed for half a century. Nevertheless, the Court of Appeal said that the evidence about other countries "[cut] the ground from the submission…that there were good reasons for the Government to take no steps to bring this country into line with our neighbours until 1998." But we have no idea of the extent to which we are "[in] line with our neighbours" except in the content-free sense of not making a distinction between widows and widowers. That seems to me an inadequate basis for deciding that the widows' benefits should have been abolished earlier.

    40.  I therefore agree with Moses J that the preservation of WP for widows bereaved before 9 April 2001 was objectively justified. It involved no breach Convention rights.

    Section 6(2) of the 1998 Act

    41.  No objective justification is claimed for the payment of WPt and WMA at the relevant times. The Secretary of State does submit, in an argument based on the unreported decision of the European Court of Human Rights in Walden v Liechtenstein (Application No 33916/96) (16 March 2000) that there was nevertheless no breach of Convention rights because Parliament had to be allowed a reasonable time to legislate to put the matter right. I shall come back to this point later. Meanwhile, I turn to the second important point in this appeal, which is whether, assuming that non-payment of WPt and WMA to widowers involved breaches of Convention rights, the Secretary of State's acts or omissions are immunised by section 6(2) of the Act.

    42.  The Secretary of State relies upon section 6(2)(b). He says that, notwithstanding the injunction in section 3 to read and give effect to legislation in a way which is compatible with Convention rights, sections 36 and 37 of the 1992 Act cannot be read as applying to widowers. Mr Cox QC, for Messrs Withey, Martin and Naylor, tried unsuccessfully to persuade Moses J and the Court of Appeal to do so but before your Lordships the widowers accept that it cannot be done. So the Secretary of State says that section 6(2)(b) applies because sections 36 and 37 are provisions which "cannot be read or given effect in a way which is compatible with the Convention rights" and that in paying WPt and WMA he was "acting so as to give effect to…those provisions."

    43.  The widowers say that they not complaining that the payments to widows infringed their Convention rights. Their complaint is that no similar payments were made to them. They accept that the 1992 Act imposed no obligation upon the Secretary of State to make payments to widowers but argue that he could have made such payments by exercising the common law powers of the Crown as a corporation sole to make discretionary payments of funds under its control. The breach of Convention rights therefore arose out of a failure to exercise a common law power and this is entirely outside section 6(2)(b).

    44.  Mr Sales, for the Secretary of State, accepted that sections 36 and 37, while imposing a statutory duty to pay WPt and WMA to widows, did not make it unlawful for the Crown to make equivalent extra-statutory payments to widowers. It was therefore not the case that the Secretary of State, as a result of primary legislation, "could not have acted differently" within the meaning of section 6(2)(a). But he submitted, and Moses J accepted, that the case fell within section 6(2)(b). The Secretary of State was acting incompatibly with Convention rights because he was giving effect to sections 36 and 37.

    45.  The Court of Appeal, at para 135, rejected Mr Sales's concession that the Crown would have had a power at common law to make extra-statutory payments. In their opinion, sections 36 and 37, requiring payments only to widows, would have made it an abuse of power to make payments to widowers. They applied the principle in Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508. However, the 1998 Act displaced the effect of this principle and required the Crown to make extra-statutory payments equivalent to WPt and WMA in order to achieve compatibility with Convention rights. The Court of Appeal therefore accepted, for a different reason, Mr Sales's concession that section 6(2)(a) did not apply. But they also held, at para 119, that section 6(2)(b) did not apply:

    "The 1992 and 1999 Acts expressly require the Secretary of State to pay benefits to widows in accordance with their terms. If he retains a common law power to make payments to widowers, we cannot see how a decision not to exercise that power can be said to be necessary in order to give effect to the provisions, express or implied, of either Act."

    46.  Mr Sales submitted to your Lordships that the Court of Appeal was wrong to say that the Crown could not have made extra-statutory payments to widowers before the 1998 Act came into force. As a corporation sole, the Crown has the same right to deal with its property as any other legal person. It needs no statutory authority to do so. There are constitutional conventions in the relationship between the Crown and Parliament as to when the Crown will spend money voted by Parliament without a specific statutory authority to do so (see the Concordat between the Treasury and the Public Accounts Committee to which reference is made in Halsbury's Laws of England (4th edn reissue) vol 8(2) (1996), para 230), footnote 4 but these are flexible conventions and not legally binding. The principle in the De Keyser's Royal Hotel case is, says Mr Sales, nothing to the point because it deals with an implied statutory extinction or restriction of the historic prerogative powers which belong to the Crown as supreme executive authority. The right to spend money is not a power which the Crown enjoys as executive but simply by virtue of being a legal person like any other. A statute would have to be a good deal more explicit before it could be interpreted as extinguishing such a commonplace power. Mr Sales added that it would be unfortunate if the dicta in the Court of Appeal cast doubt upon the validity of extra-statutory schemes such as the Criminal Injuries Compensation Scheme, which was originally established without any statutory authority.

    47.  There seems to be to be a good deal of force in these submissions, but I need not express a concluded opinion because, if they are right, they lead to the same conclusion as that reached by the Court of Appeal, namely that section 6(2)(a) does not apply. I should add that I also have some difficulty in seeing why, if it would have been an abuse of power for the Secretary of State to make discretionary extra-statutory payments to widowers before the 1998 Act came into force, it should afterwards have become compulsory. But I put these questions aside and turn to the question of whether section 6(2)(b) applies.

    48.  The Court of Appeal rejected the Crown's argument on section 6(2)(b) on the ground that a decision not to make extra-statutory payments was not "necessary in order to give effect to the provisions, express or implied" of the 1992 or 1999 Acts. But section 6(2)(b) says nothing about a decision having to be necessary for any particular purpose. If the 1992 or 1999 Acts had made it necessary not to make extra-statutory payments, the case would have fallen under section 6(2)(a). The Secretary of State could not have acted differently.

    49.  Clearly, section 6(2)(b) has a different purpose. It assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant in accordance with section 3. It follows that section 6(1) does not apply if the Secretary of State was acting incompatibly with Convention rights because he was giving effect to sections 36 and 37 of the 1992 Act.

    50.  The widowers say that the incompatibility did not arise because the Secretary of State was giving effect to sections 36 and 37. It arose because he did not make equivalent extra-statutory payments. But the payments under sections 36 and 37 are essential to any complaint of discrimination. If the Secretary of State had not paid widows, he would have infringed no Convention rights by not paying widowers. If section 6(1) "does not apply" to the acts of making payments under sections 36 and 37, the argument for unlawful discrimination in domestic law collapses.

    51.  This reasoning is in my opinion supported by the evident purpose of section 6(2), which was to preserve the sovereignty of Parliament: see Lord Nicholls of Birkenhead in Aston Cantlow and Wilmcote with Billesley PCC v Wallbank [2004] 1 AC 546, para 19. If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation. As Moses J said, at para 185, the widowers' submissions on section 6(2) :

    "come…perilously close to a submission that the court should impose a duty to grant benefits where Parliament has chosen not to do so."

    52.  It follows that in my opinion the acts and omissions of the Secretary of State incompatible with Convention rights, that is to say, the payment of WPt and WMA to widows without making similar payments to widowers, was immunised by section 6(2)(b). The widowers' claims under section 7(1)(a) must therefore be dismissed, in the case of WP because there was no incompatibility with Convention rights and in the case of WPt and WMA because of section 6(2)(b). Moses J, who came to a similar conclusion, made a declaration that sections 36 and 37 of the 1992 Act were incompatible with Convention rights. But both sections have been repealed and I see no point in making such a declaration now.

    Victim status and retrospectivity

    53.  These conclusions make it strictly unnecessary to decide whether, if there had been no objective justification for WP or no section 6(2) defence, these widowers would have been victims for the purposes of bringing an action under section 7(1)(a). But the question has been argued and I shall therefore express some views on the hypothesis that the Secretary of State was acting unlawfully.

    54.  A person may bring a claim under section 7(1)(a) only if he is a "victim" of the unlawful act. By section 7(7), a person is a victim of an unlawful act only if he:

    "would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."

    55.  It is therefore necessary to identify an unlawful act (which section 6(6) treats as including a failure to act) and then to ask whether the claimant would be regarded as a victim under article 34 if he brought proceedings in Strasbourg in respect of that Act. And section 22(4) provides that an act or omission cannot have been unlawful if it took place before the Act came into force.

    56.  On the stated hypothesis, the unlawful act was in my opinion a failure after 2 October 2000 to make available survivors' benefits to widowers who wished to claim them. How does one identify the widowers who wished to claim such benefits? The entitlement of a widow depended upon her making a claim within 3 months. If she did not make a claim to WPt within 3 months of bereavement she lost her entitlement. In the case of WMA and WP, she was entitled to weekly payments from bereavement or 3 months before the date of the claim but not for any earlier period. The general principle applied by the European Court of Human Rights is that a victim is someone "directly affected" by the impugned measure. Applying this principle, the court has decided that a man can be a victim of discrimination in respect of survivors' benefits only if he has done something which identifies him as having wished to make a claim. I put the matter in this way because a man could not have made a claim in exactly the same way as a woman. For women, there was a prescribed form. But for men, of course, there was no such form because no such benefits could be claimed at all.

    57.  What for this purpose counts as demonstating that one wished to make a claim? In Cornwell v United Kingdom (1999) 27 EHRR CD 62 the court treated an inquiry about the availability of benefits as sufficient. This suggests that any act will count if the appropriate official could reasonably have inferred that the applicant would have made a formal claim if there had been a form on which to make it. Moses J said that a claim to benefits had to be made clear in writing. The Court of Appeal disagreed and I think that the Court of Appeal was right. No doubt it would be better for good administration if such shadow-claims had been made in writing. But the Secretary of State, by refusing to allow such claims at all, has put it out of his power to insist that they be made in any particular form. If the principle I have suggested is correct, namely that the applicant must have done something to indicate to an appropriate official that he would have made a formal claim if this had been possible, then an oral inquiry should suffice.

    58.  The next question is when the claim, or equivalent of a claim, has to be made. In my opinion claims made before the 1998 Act came into force do not count. They cannot constitute the claimant a victim in respect of an unlawful act because until then the Secretary of State could not have been doing anything unlawful in rejecting them or taking no notice of them: see section 22(4). I reject the suggestion that the Secretary of State was obliged to preserve them in case the law of England should one day make it unlawful for him not to make survivors' benefits available to men. I likewise reject the submission that earlier claims remained active because they showed a continuing intention to make a formal claim if it should be possible to do so. An intention is not enough unless it is communicated to an appropriate official at a time when rejection would be unlawful. It is therefore necessary to be able to point to a claim made after 2 October 2000. But an act which amounts to an express or implied reaffirmation of an earlier claim would in my opinion be sufficient. It would convey to the official that the applicant would make a claim then and there if he was able to do so.

    59.  In the present case, Mr Hooper's solicitors wrote to the Department on 4 October 2000 referring to an earlier claim. Mr Withey filled in an application form on a widow's benefit form on 12 October 2000 and Mr Martin did the same on an uncertain date on October 2000. Mr Naylor wrote on 2 October 2000 asking to appeal against the refusal of benefit. In my opinion each of them became a victim on those dates and their cause of action under section 7(1)(a), if they had one, would have dated accordingly.

    Walden v Liechtenstein

    60.  In Walden v Liechtenstein (Application No 33916/96) (16 March 2000) the applicant was a Liechtenstein pensioner who complained that calculation of the joint pension due to himself and his wife by reference only to his own contribution record discriminated unfairly against couples where the wife had a better contribution record than the husband. The domestic administrative courts agreed that there had been discrimination but said that it was mandated by primary legislation and could not be remedied without amendment. On 24 May 1996 the State (Constitutional) Court found the law to be unconstitutional but refused to set it aside on the grounds that this would be disruptive and contrary to good administration. It could have suspended the order quashing the law for a maximum of six months but was concerned that the new law would not be in place in time. In fact the new, non-discriminatory law came into force on 1 January 1997.

    61.  The applicant complained that until the new law came into force his Convention rights had been violated. The Strasbourg court agreed with the domestic courts that the previous law had violated the applicant's rights under article 14 but held that, in the events which had happened, the refusal to quash the discriminatory law was equivalent to suspending it. The temporary preservation of the old law served the legitimate aim of maintaining legal certainty and the period of just over six months was proportionate.

    62.  I must confess to finding this a puzzling decision which may be explicable by reference to the way it was argued. ("The court notes that the parties' submissions in the present case concentrate on the question whether the State Court should have set the contested provisions aside"). I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its justification, a period of consultation, drafting and debate must be included in the time which the legislature may reasonably consider appropriate for making a change. Up to the point at which that time is exceeded, there is no violation of a Convention right. But there is no suggestion in the report of Walden v Liechtenstein that the discrimination between married couples was ever justified and I find it hard to see why there was no violation of Convention rights as long as the old law remained in place.

    63.  In this case, the Secretary of State has not offered justification for WPt and WMA at any relevant time. It is not as if he was saying that they remained justifiable until shortly before the 1998 Consultation Paper was published and that afterwards it was reasonable to allow the period actually taken for the extension of the benefits to men to be enacted and brought into force. He has not addressed the question of justification at all. In those circumstances, if he had not been protected by section 6(2), he would not in my opinion have been able to resist liability on the grounds that a period for changing the law ought to have been taken into account.

    Discrimination between widowers and pre-2000 Strasbourg petitioners

    64.  The Government has, as I mentioned earlier, followed a policy of arriving at a friendly settlement to pay off widowers who petitioned Strasbourg before the 1998 Act came into force and obtained a declaration (sometimes unopposed) that their complaints were admissible. But they have not been willing to pay off those who petitioned after the Act came into force (defending the proceedings on the grounds that the applicants have not exhausted domestic remedies), still less those who have not petitioned at all. The widowers say that this is itself discrimination in according them fundamental rights and freedoms and therefore an infringement of article 14.

    65.  In my opinion, there is nothing in this complaint. The argument fails for a number of reasons. The first question is whether discrimination by reference to whether or not someone has started legal proceedings is covered by article 14 at all. In R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196, 2213, paras 48-49, Lord Steyn (with the agreement on this point of all other members of the House) said that article 14 required discrimination to be by reference to some status analogous with those expressly mentioned, such as sex, race or colour. (See also Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 732-733, para 56.) Being a person who has started legal proceedings does not readily appear to qualify as a status.

    66.  Secondly, article 14 requires that the discrimination concern the "enjoyment of the rights and freedoms set forth in this Convention". Those rights must come within the ambit of one of the articles in Section 1 of the Convention, which is headed "Rights and Freedoms". But the right to compensation for infringement of a Convention right cannot be described as the enjoyment of that right. On the contrary, it is awarded because the applicant has not enjoyed the right in question. It arises, so far as it can be described as a right at all, from the Strasbourg court's power to award just satisfaction in article 41 in Section 2 of the Convention, which is headed "European Court of Human Rights".

 
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