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

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    67.  Thirdly, there are clear grounds of objective justification for the Government distinguishing between applicants who petitioned before the 1998 Act came into force and the appellant widowers. The Government is entitled to have its domestic obligations under the 1998 Act clarified by this court before the Strasbourg court considers whether the domestic system, taken as a whole, complies with the Convention. As for the suggestion that the Government should pay petitioners who have not petitioned Strasbourg at all, it would require the Government to abandon the protection of section 6(2) in domestic law, or the 6 month limitation period in article 35 of the Convention or both. I see no reason why the Government should do so.

    Disposal

    68.  For these reasons I would allow the appeals of the Secretary of State and dismiss the appeals of the widowers.

LORD HOPE OF CRAIGHEAD

My Lords,

    69.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he has given I too would allow the appeals of the Secretary of State and dismiss the appeals of the widowers. I should like however to add some words of my own on the second important point in these appeals, which is whether the Secretary of State can rely on the exception which section 6(2)(b) of the Human Rights Act 1998 provides to the general rule in section 6(1) that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

    70.  Section 6(2) provides that 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."

Paragraphs (a) and (b) both qualify the basic principle in section 6(1) that it is unlawful for a public authority to act in a way that is incompatible with the Convention rights. The purpose of these paragraphs is to prevent section 6(1) being used to undermine another of the Act's basic principles. This is that in the final analysis, if primary legislation cannot be interpreted in a way that is compatible with them, Parliamentary sovereignty takes precedence over the Convention rights. As section 3(2)(b) and (c) makes clear, the validity and continuing operation or enforcement of primary legislation, and of subordinate legislation too where the removal of the incompatibility is prevented by primary legislation, is unaffected by the Act if it cannot be read and given effect in a way which is compatible with the Convention rights: see also section 4(6)(a).

    71.  The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do. The language of the paragraph tells us that this may be the result of one provision taken by itself, or that it may be the result of two or more provisions taken together. Where more than one provision is involved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable.

    72.  The situation to which paragraph (b) is addressed on the other hand arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise. That was the situation R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929, where the Secretary of State's discretion under section 77 of the Town and Country Planning Act 1999 as to whether the planning application should be called in was under consideration and the question was whether he could ever exercise that discretion in a way which was compatible with the Convention right. It was also the situation in R v Kansal (No 2) [2001] UKHL 62; [2002] 2 AC 69, where the prosecutor, by leading and relying at the trial on compulsory questioning evidence under section 433 of the Insolvency Act 1986 which provided that statements made by a person in response to a requirement imposed by the Act or rules made under it may be used in evidence in proceedings against him, was acting so as to give effect to that section; see also Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, where there was a statutory power which in its discretion the council was entitled to exercise. But the source of the discretion that is given to the authority may also be found in several statutory provisions which taken together have that effect. Or, as there is nothing in the language of the paragraph to indicate the contrary, it may be found in the common law.

    73.  The important point to notice about paragraph (b) is that the source of the discretion does not matter. What matters is (a) that the provisions in regard to which the authority has this discretion cannot be read or given effect compatibly with the Convention rights and (b) that the authority has decided to exercise or not to exercise its discretion, whatever its source, so as to give effect to those provisions or to enforce them. If it does this, this paragraph affords it a defence to a claim under section 7(1) that by acting or failing to act in this way it has acted unlawfully. In this way it enables the primary legislation to remain effective in the way Parliament intended. If the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. The power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament.

    74.  Moses J held that section 6(2)(b) of the 1998 Act provided the Secretary of State with a defence to the allegation that he had acted unlawfully by declining to make the payments to widowers. He reached the same conclusion in R (Wilkinson) v Inland Revenue Commissioners [2002] EWHC 182 (Admin); [2002] STC 347, 359, paras 45-49, as to whether the defence was available to the commissioners who had declined to give a bereavement allowance to widowers which was equivalent to that which they were required to give to widows by section 262 of the Income and Corporation Taxes Act 1988. He noted that the common law power to make extra-statutory allowances, if exercised, would lead to compatibility but refraining from exercising the power would lead to incompatibility. The effect of the argument that the commissioners were not entitled to rely on section 6(2)(b) was to convert the power to give an extra-statutory allowance into a duty to do so. That would destroy the power altogether. It would replace it with an obligation to make widowers the same allowance as widows, as this would be the only way that the commissioners could act, as section 6(1) requires, in a way which was compatible with the widowers' Convention right.

    75.  The Court of Appeal in the present case said that the decision of Moses J on this point was in error, but I think with respect that his decision was the right one in both cases. In the view of the Court of Appeal the 1992 and 1999 Acts expressly required the Secretary of State to pay benefits to widows in accordance with their terms. He did not need to rely on any common law power to make payments to widowers to do what the statutes told him to do, which was to make payment to widows. So a decision not to exercise the common law power could not be said to be necessary in order to give effect to the statutes. Accordingly the defence under section 6(2)(b) was not available: [2003] 1 WLR 2623, 2667, para 119. But section 6(2)(b) does not seek to address cases where the exercise of the power is necessary. That situation is covered by section 6(2)(a). The fact that the exercise of the power is not necessary does not take it outside the ambit of section 6(2)(b).

    76.  In R (Wilkinson) v Inland Revenue Commissioners [2003] EWCA Civ 814; [2003] 1 WLR 2683, 2698, para 53, where the power was one which was given to the commissioners by statute, the Court of Appeal said that if circumstances were to arise in which it was necessary to exercise that power in order to avoid a breach of Convention rights they could see no basis upon which they could rely upon section 6(2)(b) to justify a refusal to exercise the power. In my opinion this reasoning, which treats the power as a duty to act compatibly with the Convention rights, fails to give effect to the true purpose and function of this paragraph. It overlooks the principle which lies at the heart of the scheme of the Act that the Convention rights must in the end, if it is not possible under section 3(1) to interpret legislation in a way which is compatible with them, give way to the sovereignty of Parliament.

    77.  Mr Goudie QC for Mr Hooper, whose argument on this point Mr Cox QC adopted on behalf the other widowers, said that the Secretary of State's defence under section 6(2)(b) must fail for one or other of two reasons. He presented them as alternatives. On the one hand, he said, the Secretary of State could not bring himself within the opening words of section 6(2)(b). This was because the 1992 and 1999 Acts could be given effect in a way that was compatible with the widowers' Convention rights by making payments to them as well as to widows. By doing this the Secretary of State would be performing his statutory duty under the 1992 and 1999 Acts to make payments to the widows, and he would be performing his duty under section 6(1) of the 1998 Act by exercising his common law powers so as to avoid breaches of the widowers' Convention rights. On the other hand the Secretary of State could not bring himself within the closing words of section 6(2)(b). It would have provided him with a defence if he had been acting so as to give effect to or enforce the primary legislation. But his failure to exercise his common law powers had nothing to do with giving effect to the statutory scheme which had been laid down by the 1992 and 1999 Acts.

    78.  In my opinion this approach to the construction of section 6(2)(b) too is in conflict with the way in which the basic scheme of the Act gives primacy to Parliamentary sovereignty over the Convention rights. According to Mr Goudie's first alternative argument, where a statutory scheme operated by the Secretary of State contains a feature which is incompatible with Convention rights which cannot be cured by means of the interpretative obligation in section 3(1) of the 1998 Act, section 6(1) requires him to exercise his common law power to make good that defect. The effect is to convert the Secretary of State's power into a duty. It becomes a duty to make extra-statutory payments out of public funds which, in unambiguously clear terms, Parliament has decided he should not make. And the argument that the defence in section 6(2)(b) is available only where a decision whether or not to exercise a statutory power is in issue ignores the width given to the expression "public authority" by section 6(3), which does not limit its application to bodies which are creatures of statute and have no powers which they may exercise other than statutory ones.

    79.  In my opinion therefore the Secretary of State is entitled to rely on section 6(2)(b), and it follows that his act in not exercising his common law power by making payment to widowers was not unlawful. The route which provides him with this defence is a simple one. The starting point is the widowers' claim under section 7(1) that his refusal to make the payments to them which the statutes required him to pay to widows was made unlawful by section 6(1) of the 1998 Act because he was acting in a way which was incompatible with their Convention right. Section 3(1) of the Act provides that, so far as it is possible to do so, the relevant provisions of the 1992 and 1999 Acts must be read and given effect to in a way that is compatible with Convention rights. It is now common ground that that it is impossible to read the references in the female gender in these sections as including the masculine. So, to adopt the language of the opening words of section 6(2)(b), these are provisions of primary legislation which cannot be read or given effect to in a way that is compatible with the Convention rights.

    80.  Mr Goudie's argument that the Secretary of State cannot bring himself within these opening words fails at this point. Section 3(1) and section 6(2)(b) are different sides of the same coin. If the effect of applying section 3(1) is that the provisions of the primary legislation can be read and given effect in a way which is compatible with the Convention rights, it is the duty of the public authority to act compatibly with them. Otherwise it will be acting in a way that is made unlawful by section 6(1). But if the provisions cannot be read and given effect in that way the defence which section 6(2)(b) provides is available. In this way, as in others, the Act preserves the sovereignty of Parliament. A public authority is not obliged, in the performance of its duty under section 6(1) not to act in a way that is incompatible with Convention rights, to read and give effect to primary legislation in a way that conflicts with the intention of Parliament.

    81.  The Secretary of State had to consider whether the 1998 Act allowed him to decline to exercise his common law powers to make the payments to the widowers which they asked him to make to match those which he was under a duty to make to widows under the provisions of the 1992 and 1999 Acts. An act, for the purposes of section 6(1), includes a failure to act: section 6(6). So the question is whether he was giving effect to those provisions by failing to exercise the power which the common law gave him to make equivalent payments to widowers. As it is now common ground that those provisions can only be read and given effect by confining the payments to widows and not extending them to widowers, the answer to this question is self-evident. A common law power to make payments for which the statutes do not provide is only a power. By declining to exercise it, the Secretary of State was simply doing what the 1992 and 1999 Acts told him to do. He was giving effect to their provisions, as they obliged him to make payments to widows only and not to both widows and widowers.

    82.  It is important to note that it makes no difference that the power which the Secretary of State was declining to exercise was a common law power and not one given to him by statute. Unlike section 6(2)(a), which disapplies section 6(1) where as a result of one or more provisions of primary legislation the public authority could not have acted differently, section 6(2)(b) says nothing about the origin of the act, or the failure to act, which gives effect to or enforces the provisions of primary legislation which cannot be read or given effect in a way which is compatible with Convention rights. Where, as in R v Kansal (No 2) [2002] 2 AC 69, the public authority is doing what the statute authorises him to do the origin of its act will be found in the statute. But that cannot always be said to be so, especially where the power enables the authority to refrain from acting in a way that would be compatible with the Convention rights. The failure which in proceedings under section 7(1) a person alleges to amount to an act which is made unlawful by section 6(1) may consist simply of a refusal to give effect to the statute in a way which is compatible with a Convention right because it cannot be read as giving power to do so to the authority. But it may also, as in this case, consist of a refusal to exercise a power which has its origins elsewhere because to exercise it in a way that was compatible with the Convention would conflict with the intention of Parliament.

    83.  The expression "public authority" is not fully defined anywhere in the 1998 Act. What the Act does instead is to address itself to some particular issues by saying what the expression includes and does not include: see section 6(3). Many bodies which are obviously public authorities will be entirely creatures of statute. But bodies which are included in the definition of "public authority" for the purposes of this Act because certain of their functions are functions of a public nature are not so limited. It is the nature of their functions, not the nature of the body that performs them, that is determinative in their case. The scope of the defence which section 6(2)(b) provides would be impeded if it was available only where the failure to act could be linked to a power which was given to the authority by statute because the definition of "public authority" is not limited in that way. It includes bodies which, because they are not creatures of statute, are largely if not entirely dependent upon the common law when taking decisions as to what they can and cannot do. There is no indication in section 6(2)(b) or elsewhere that public authorities whose powers are not derived from statute or whose powers are derived in part from the common law are in a less favourable position for the purposes of the defence which it provides than those which are entirely the creatures of statute. The primacy that is given to the sovereignty of Parliament requires that they be treated in the same way, irrespective of the source of the power.

LORD SCOTT OF FOSCOTE

My Lords,

    84.  The main issue in these appeals, shortly stated, is whether the Secretary of State acted unlawfully in declining to pay to the four claimants, each a widower, sums of money equivalent to the benefits that, if they had been widows, they would have been entitled to be paid pursuant to sections 36 to 38 of the Social Security Contributions and Benefits Act 1992. I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hoffmann, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood and respectfully agree with their conclusion that the Secretary of State did not act unlawfully in declining to make these payments. I agree, therefore, that the appeals of the Secretary of State should be allowed and the appeals of the widowers dismissed. There are, however, some differences between my noble and learned friends as to the application of section 6(2)(a) and (b) of the Human Rights Acts 1998 to these cases. So I want to express in my own words my opinion on that part of reasoning. I want also to question the assumption that the discrimination complained of by the widowers engages their rights under the Convention.

    85.  The case of each of the widowers is based on the unchallengeable fact that sections 36,37 and 38 of the 1992 Act discriminated between widows and widowers in favour of the former. Statutory benefits, namely, widow's payment (section 36), widowed mother's allowance (section 37) and widow's pension (section 38), could be claimed as of right by widows, provided certain specified statutory conditions were met, but could not be claimed in any circumstances by widowers. The claimants say that this discrimination was in breach of article 14 of the Convention. Section 6(1) of the 1998 Act says that it is unlawful for a public authority to act in a way which is incompatible with a Convention right and section 6(6) says that an "act" includes a failure to act. So, the argument goes, the Secretary of State's refusal to pay them sums equivalent to the benefits to which they would have been entitled had they been widows was unlawful. They claim an appropriate remedy (see section 8 of the 1998 Act).

    86.  The claimants do not now dispute that the language of the 1992 Act excludes them from claiming a statutory right to the payments they seek. They accept that the relevant sections of the 1992 Act cannot "be read and given effect in a way which is compatible with" article 14 (see section 3(1) of the 1998 Act). But they point out that the Secretary of State has a common law power (subject to parliamentary authority under the annual Appropriation Acts) to make payments out of public funds where he thinks it desirable and appropriate to do so and that he has in fact made extra-statutory payments to widowers who had instituted proceedings before the Strasbourg court. He has done so in order to settle their claims before that court for redress for wrongful discrimination. The widowers now before the House say that the Secretary of State's failure to make similar payments to them is not only an unlawful discriminatory failure to place them in the same position as the widows who can claim benefits under the 1992 Act but, in addition, constitutes an unlawful discrimination as between them and the Strasbourg claimants to whom the ex-gratia payments have been made.

Is a Convention right engaged?

    87.  The widowers' claims raise a number of issues. But underlying all these issues is the proposition that the payment of statutory benefits to widows but not widowers, or the payment of extra-statutory benefits to Strasbourg claimant widowers but not to widowers who have not taken their complaints to Strasbourg, engages a Convention right of the widowers. This is not a proposition that has been subjected to any critical examination before your Lordships but it is not in my opinion self-evident and warrants a little examination.

    88.  Article 14 of the Convention says that:

    "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 … etc".

This is not a free-standing prohibition against discrimination. It bars signatory states from being discriminatory in the way in which they guarantee the substantive rights set out in the Convention (see Clayton & Tomlinson's The Law of Human Rights, vol 1 para 17.79). Contrast the corresponding article in the Charter of Fundamental Rights of the European Union, "proclaimed" at the Nice European Council in December 2000 and now incorporated in the Treaty establishing a Constitution for Europe signed on 29 October 2004:

    "1.  Any discrimination based on any ground such as sex, race, colour, ethnic or social origin …. [etc] … shall be prohibited" (article 21 of the Charter: article II-81 of the Treaty)

This article expresses a free-standing anti-discrimination prohibition. article 14 does not. Strasbourg jurisprudence, predating the enactment of the 1998 Act, has interpreted article 14 as requiring a complainant of discrimination to show that the complaint falls within the "ambit" of some substantive Convention right (see Rasmussen v Denmark (1984) 7 EHRR 371). It is not necessary to show that the substantive Convention right has actually been breached. And in Willis v United Kingdom (2002) 35 EHRR 547) the Strasbourg court held that discrimination in favour of widows and against widowers in the payment to the former but not to the latter of the social security benefits with which these cases now before the House are concerned constituted a breach of article 14 taken in conjunction with article 1 of Protocol No 1. The court did not consider it necessary to express a view as to whether the discrimination was also a breach of article 14 taken in conjunction with article 8.

    89.  My Lords, I have remarked already that the question whether the discriminatory character of the statutory scheme for payment of benefits to widows but not to widowers engaged any Convention right was not addressed by counsel. So no final conclusion on the question can be expressed by your Lordships. But I want to take this opportunity of making clear my misgivings about the assumption that the answer to the question must be affirmative. The Strasbourg's court's conclusion in Willis that Convention rights were engaged by the statutory discrimination because the benefits were "… a sufficiently pecuniary right to fall within the ambit of article 1 of Protocol No 1" (see para 36) seems to me, if I may respectfully say so, to overlook that the statutory scheme deprives widowers of nothing. It no more deprives widowers of a "possession" than it deprives a widow who does not make her application in time or whose deceased husband had not paid the requisite contributions of a "possession". As to article 8, it would be necessary, I think, if the widowers complaints were to be held to be within the "ambit" of article 8, to categorise the payment of the statutory benefits to widows as being a means whereby the United Kingdom demonstrates its respect for family life (c/f Petrovic v Austria (1998) 33 EHRR 307, para 29) and to categorise the failure to make equivalent payments to widowers as indicating a lack of due respect for the widowers' family life. My initial reaction to such a submission if it were made would be, I confess, sceptical. The principle that article 14 discrimination will be in breach of a Convention right if it is within "the ambit" of a substantive Convention right ought, in my view, to be confined within the requirements of the principle of certainty. The Strasbourg's court's decision in Willis 35 EHRR 547 seems to me difficult to reconcile with that principle. Article 14 cannot be transformed by the jurisprudence of the Strasbourg court into a simple prohibition, along the lines of its Charter counterpart, against any discriminatory treatment. That would be an alteration, or extension, for Parliament, not the Strasbourg court, to make.

    90.  However, on the footing, accepted by the Secretary of State before your Lordships and in the Court of Appeal, that the discrimination complained of is within the ambit of either article 1 of Protocol No 1 or article 8, I must address the section 6(2) issue.

What is the effect of section 6(2) (a) and (b) of the 1998 Act?

 
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