Judgments - Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Carson (Appellant) Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Reynolds (FC) (Appellant)

(back to preceding text)

    The Michalak questions

    28.  It may have been observed that I have arrived at these conclusions without reference to the well-known questions formulated by Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, 625, para 20:

    "(i)  Do the facts fall within the ambit of one or more of the substantive Convention provisions…(ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ("the chosen comparators") on the other (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification."

    29.  Brooke LJ took these questions from the analysis of the European jurisprudence in Grosz, Beatson and Duffy's Human Rights: The 1998 Act and the European Convention, (2000) para C14-08. They are no doubt an accurate taxonomy of the various issues decided by the Strasbourg court. But I am not sure that they are always helpful as a framework for reasoning. Question (i) reflects the fact that article 14 is confined to discrimination as to a list of particular matters and, as Stanley Burnton J said in this case [2002] 3 All ER 994, 1010, para 52 it would be logical to add the question of whether the discrimination was on one of the specified grounds. Unless the claim satisfies these requirements, article 14 is not engaged at all. Question (ii) identifies the nature of the claimant's case. It identifies the real or hypothetical person in comparison with whom he complains he is being treated differently.

    30.  The real difficulty about the questions is the apparent overlap between questions (iii) and (iv). If an "analogous situation" in question (iii) means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment. In what kind of case does one go on to question (iv) and ask separately about justification? Laws LJ [2003] 3 All ER 577, 604, para 61 suggested that it might clarify matters to substitute for question (iii) a "compendious question":

    "Are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X".

    31.  But in my opinion there are two difficulties about this formulation. First, it appears to reduce question (iii) to asking whether there is, so to speak, a prima facie case of discrimination (do the facts "call for" a justification) and to treat question (iv) as dealing with whether the call has been answered. But this division of the reasoning into two stages is artificial. People don't think that way. There is a single question: is there enough of a relevant difference between X and Y to justify different treatment? Secondly, the invocation of the "rational and fair-minded person" (who is, of course, the judge) suggests that the decision as to whether the differences are sufficient to justify a difference in treatment will always be a matter for the judge. In many cases, however, the decision will be a matter for Parliament or the discretion of the official entrusted with statutory powers.

    32.  It might be more logical to confine question (iv) to justification for different treatment of cases which were not relevantly different, eg to achieve some legitimate teleological or administrative purpose, such as correcting the effect of past discrimination or the administrative convenience of having clear distinctions. That would explain why in such cases the courts insist that the discrimination must be necessary and proportionate for the object to be achieved. But neither the Strasbourg court nor the English courts have approached the matter in this way (in Michalak itself, Brooke LJ regarded the fact that near relatives were relevantly different from distant relatives as an answer to question (iv) rather than question (iii)) and it is certainly not expressed in the formulation of the questions.

    33.  For these reasons I have found it better not to use the Michalak framework. What matters in my opinion is that (1) there is no question in this case of discrimination on a ground such as race or gender which denies Ms Carson the right to equal respect (2) in applying a scheme of social security, it is rational and internationally acceptable to distinguish between inhabitants of the UK and persons resident abroad (3) the extent to which the claims, if any, of persons resident abroad should be recognised is a matter for parliamentary decision. None of these reasons fits easily into the Michalak formula.

    34.  I would therefore dismiss Ms Carson's appeal.

    Reynolds v Secretary of State for Work and Pensions

    35.  I can deal much more shortly with the appeal of Ms Reynolds, partly because I have already covered much of the jurisprudential ground in dealing with the appeal of Ms Carson and partly because there is indeed very little to be said in favour of Ms Reynolds' appeal.

    36.  Ms Reynolds complains that because she was under the age of 25, she was paid jobseeker's allowance and then income support at the reduced rate of £41.35 a week instead of the full rate of £52.20. These are the rates prescribed by regulations made under the Jobseekers Allowance Regulations 1996 (SI 1996/207) and the Income Support (General) Regulations 1987 (SI 1987/1967) respectively. She argues that article 14 entitles her to be treated equally with people over the age of 25.

    37.  The Secretary of State says that the situation of people under 25 is relevantly different. First, many more of them live with parents or in shared accommodation and therefore have lower expenses. Secondly, people under 25 who are in work tend to be paid less than older workers. A reduced rate of payment would represent the same proportion of what they could expect to earn.

    38.  The evidence adduced on behalf of Ms Reynolds did not contradict the view of the Secretary of State on either of these points, although Mr Gill QC, who appeared for Ms Reynolds, denied the relevance of the second point. He said that jobseeker's allowance and income support were based on need, not on a relationship with presumptively lost earnings. As for the first point, he said it would be fairer if the regulations distinguished between householders and non-householders. If one was a householder under 25, as Ms Reynolds was, one had the expenses of a householder and it was nothing to the point that many other young people could live more economically with parents or friends.

    39.  The Secretary of State replied that the regulations had originally distinguished between householders and others but that the distinction had been abandoned, and an age qualification substituted, because it had proved very difficult to operate. It contemplated a standard nuclear family in which the father was the householder and the wife and children were not. But modern households tended increasingly to vary from this pattern and in the case of accommodation shared between friends, there was no reason why one occupant should be designated the householder rather than another. In any case, as a matter of policy, the government wanted to discourage people under 25 from occupying accommodation on their own. It was wasteful of scarce housing resources.

    40.  I pass over the question of whether income support (a non-contributory benefit) falls within 1P1. In my opinion, once it is accepted that the necessary expenses of young people, as a class, are lower than those of older people, they can properly be treated differently for the purpose of social security payments. No doubt there are different ways of giving effect to the distinction, but that is a matter for Parliament to choose.

    41.  Mr Gill emphasised that the 25th birthday was a very arbitrary line. There could be no relevant difference between a person the day before and the day after his or her birthday. That is true, but a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule. But your Lordships are likely to reach what I consider to be the obvious answer without having to resort to such formal reasoning. I would dismiss Ms Reynolds' appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    42.  I have had the privilege of considering in draft the speeches of my noble and learned friends, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Walker of Gestingthorpe. For the reasons which they give, I too would dismiss the appeals.

    43.  I respectfully agree with the way in which your Lordships have formulated the issues which may arise in discrimination cases. It would therefore serve no useful purpose - and might risk causing confusion - if I were to attempt a further formulation of my own. As the speeches show, a court faced with a case of alleged discrimination should not go mechanically through a series of questions. Rather, it should look at the facts of the case as a whole and identify the particular issue or issues which will have to be resolved in order to decide whether there has been discrimination contrary to article 14.

    44.  Often, the critical question will be whether the person complaining of discrimination is really in an analogous situation to that of the person who is treated more favourably. So, in Mrs Carson's case the key question is whether, for the purposes of article 14, she, as a pensioner living in South Africa, is in an analogous position to that of a pensioner living in the United Kingdom or in a country where a bilateral agreement applies. For the reasons given by Lord Hoffmann and Lord Walker I am satisfied that she is not. So the fact that she gets less by way of pension does not constitute unlawful discrimination contrary to article 14.

    45.  Ms Reynolds complains of discrimination in terms of article 14 because, for some of the time when she was under 25 years of age, she received less by way of jobseeker's allowance and income support than people of 25 and over. In other words, she was discriminated against on the ground of her age. There is no doubt that the relevant Regulations, endorsed by Parliament, deliberately gave less to those under 25. But this was not because the policymakers were treating people under 25 years of age as less valuable members of society. Rather, having regard to a number of factors, they judged that the situation of those under 25, as a class, was different from that of people of 25 and over, as a class. For example, in broad terms, those under 25 could be expected to earn less and to have lower living costs. Moreover, paying them a smaller amount of benefit would encourage them to live with others, rather than independently - something that was regarded as desirable in terms of general social policy. The scheme also had certain administrative advantages. In my view, having regard to these and other factors, it was open to ministers and Parliament, in the exercise of a broad political judgment, to differentiate between the two groups and to set different levels of benefit for them. Drawing the bright demarcation line at 25 was simply one part of that exercise. It follows that the difference in treatment of which Ms Reynolds complains easily withstands scrutiny and there is no unlawful discrimination in terms of article 14.

LORD WALKER OF GESTINGTHORPE

My Lords,

    46.  The appellants in these two appeals complain of unlawful discrimination in their entitlement to social security benefits.

    47.  I shall in due course summarise the facts of the two cases and the statutory provisions relevant to them. At this stage it is sufficient to note that the appellant in the first appeal, Mrs Annette Carson, spent most of her working life in the United Kingdom, making contributions to her prospective retirement pension, but by the time when she attained the age of 60 and began to draw her pension she had settled in South Africa. She has since 2000 received a weekly pension of £103.62 but because she is not resident in the United Kingdom she has not (in 2001 or any later year) received any increase in any part of her benefits. If she remains resident in South Africa the gap between her entitlement and that of a pensioner with a similar contributions record living in the United Kingdom (or in an overseas territory which has a reciprocal social security agreement with the United Kingdom) seems bound to increase year by year.

    48.  As to the appellant in the second appeal, Ms Joanne Reynolds, it is sufficient to state, at this stage, that she complains about the amounts of two benefits to which she was successively entitled during a period of about eight months from the autumn of 2000 to the summer of 2001: jobseekers' allowance which she received between 24 October 2000 (when she lost her job, just before her 24th birthday) and 12 January 2001 (when she was classified as incapable of working because of health problems); and income support which she received from 12 January 2001 until 9 June 2001 (when she gave birth to a son). Under the social security legislation she was (until she became a mother) entitled to both benefits at a lower level than would have been payable to a comparable claimant aged 25 or more. Ms Reynolds attained that age on 9 November 2001.

    Why discrimination is unlawful

    49.  In the field of human rights, discrimination is regarded as particularly objectionable because it disregards fundamental notions of human dignity and equality before the law. Discrimination on the ground of sex or race demeans the victim by using a sexual or racial stereotype as a sufficient ground for unfavourable treatment, rather than treating her as an individual to be judged on her own merits. Baroness Hale of Richmond explained this point very clearly in Ghaidan v Godin-Mendoza [2004] 2 AC 557, 604, para 130:

    "My Lords, it is not so very long ago in this country that people might be refused access to a so-called 'public' bar because of their sex or the colour of their skin; that a woman might automatically be paid three quarters of what a man was paid for doing exactly the same job; that a landlady offering rooms to let might lawfully put a 'no blacks' notice in her window. We now realise that this was wrong. It was wrong because the sex or colour of the person was simply irrelevant to the choice which was being made: to whether he or she would be a fit and proper person to have a drink with others in a bar, to how well she might do the job, to how good a tenant or lodger he might be. It was wrong because it depended on stereotypical assumptions about what a woman or a black person might be like, assumptions which had nothing to do with the qualities of the individual involved: even if there were any reason to believe that more women than men made bad customers this was no justification for discriminating against all women. It was wrong because it was based on an irrelevant characteristic which the woman or the black did not choose and could do nothing about."

    50.  Discrimination must always be on some ground. Completely blind, motiveless malevolence may be anti-social and abhorrent but it cannot amount to discrimination, because it is indeed indiscriminate. Two types of discrimination which are universally recognised in human rights instruments are discrimination on the grounds of sex or race, and statutory prohibitions on these types of discrimination were introduced in the United Kingdom by the Sex Discrimination Act 1975 (preceded in employment law by the Equal Pay Act 1970) and the Race Relations Act 1976.

    51.  Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is in the following terms:

    "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, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

    It is common ground that this prohibition (unlike the 12th Protocol, as yet unsigned by the United Kingdom) is not a free-standing prohibition of all discrimination. It prohibits discrimination in the enjoyment of Convention rights. The scope of this qualification is a controversial topic to which Laws LJ devoted some space in his judgment in the Court of Appeal [2003] 3 All ER 577, 592-595, paras 32-41, but it is not really an issue in these appeals as they come before this House.

    52.  It will be apparent that the grounds of discrimination prohibited by article 14 extend a good way beyond sex and race. Its enumeration of grounds does not in terms include residence (the ground of complaint in Mrs Carson's case) or age (the ground of complaint in Ms Reynolds' case). The residual group, "or other status" (in the French text, toute autre situation), is far from precise. The respondent Secretary of State does not contend that the grounds of residence and age cannot be included within the scope of article 14. But it is clear from the jurisprudence of the Strasbourg Court that the possible grounds of discrimination under article 14 are not wholly unlimited; nor are all possible grounds of equal efficacy in establishing unlawful discrimination. These points call for some explanation, since they are relevant to these appeals.

    53.  In Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, an early Strasbourg decision concerned with compulsory sex education in state primary schools, the court (at pp 732-733, para 56) interpreted "status" in article 14 as "a personal characteristic . . .by which persons or groups of persons are distinguishable from each other." The fact that a number of parents objected to their children receiving sex education at school was not accepted as equivalent to a religious belief so as to make the complainants a group for the purposes of a claim under article 14 taken together with article 2 of the First Protocol.

    54.  It was suggested in argument that the Kjeldsen test of looking for a personal characteristic is no longer part of the Strasbourg jurisprudence. But it has recently been followed by the Fourth Section of the European Court of Human Rights in two admissibility decisions, Budak v Turkey (unreported), 7 September 2004 (App No 57345/00) and Beale v United Kingdom (unreported), 12 October 2004 (App No 6743/03). In Budak the only relevant difference was in the criminal procedure adopted for two different types of offence. In Beale it was the different investigatory procedures appropriate for the police (on the one hand) and trading standards officers (on the other hand). In neither case was there any personal characteristic of the claimant which could be a ground for discrimination contrary to article 14. Moreover this House has recently applied Kjeldsen in R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, 2213, para 48 (Lord Steyn).

"Suspect" grounds of discrimination

    55.  The proposition that not all possible grounds of discrimination are equally potent is not very clearly spelled out in the jurisprudence of the Strasbourg Court. It appears much more clearly in the jurisprudence of the United States Supreme Court, which in applying the equal protection clause of the 14th Amendment has developed a doctrine of "suspect" grounds of discrimination which the court will subject to particularly severe scrutiny. They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim.

    56.  The United States Supreme Court described the concept of a "suspect class" in San Antonio School District v Rodriguez (1973) 411 US 1, 29 as a class:

    "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."

    Under the law of Massachusetts uniformed state police officers had to retire at the age of 50. This was challenged in Massachusetts Board of Retirement v Murgia (1976) 427 US 307. The Supreme Court held that in the circumstances of the case the appropriate test for equal protection of the laws was not strict scrutiny. The only issue was whether the mandatory retirement age had a rational basis, which it did: maintenance of a police force fit enough to carry out arduous and demanding duties. The majority opinion observed (at p 314):

    "This inquiry employs a relatively relaxed standard reflecting the court's awareness that the drawing of lines which create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary."

    57.  As I have said, these distinctions are not so clearly signalled in the jurisprudence of the European Court of Human Rights. But Mr Howell QC (for the respondent Secretary of State) submitted, in my opinion correctly, that the equivalent doctrine is to be found there. Where there is an allegation that article 14 has been infringed by discrimination on one of the most sensitive grounds, severe scrutiny is called for. As my noble and learned friend, Lord Nicholls of Birkenhead put it in Ghaidan v Godin-Mendoza [2004] 2 AC 557, 568, para 19:

    ". . .where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified."

    58.  In its judgments the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds. This appears, for instance (in relation to cases of discrimination on the ground of sex) in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 501, para 78; Schmidt v Germany (1994) 18 EHRR 513, 527, para 24; Van Raalte v Netherlands (1997) 24 EHRR 503, 518-519, para 39. When Harris, O'Boyle and Warbrick's valuable work, Law of the European Convention on Human Rights, was published in 1995, the authors recognised that the Strasbourg Court had its own suspect categories, identifying them as discrimination on the grounds of race, gender or illegitimacy. Since then religion, nationality and sexual orientation have, it seems, been added: see Jacobs and White, European Law of Human Rights, 3rd ed (2002), pp 355-6, citing Hoffmann v Austria (1994) 17 EHRR 293, 316, para 36; Gaygusuz v Austria (1997) 23 EHRR 364, 381, para 42 and Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 1055, 1071, para 36. Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable. Nor is there anything intrinsically demeaning about an individual's place of residence. Social or business practices which amount to what is sometimes called a "postcode lottery" might, if devoid of any rational basis, constitute discrimination. But that is not this case.

    59.  Mr Blake QC (for Mrs Carson) submitted that the category of suspect grounds is not yet closed, and that discrimination on the ground of residence is at least half-way to admission to the suspect category. Mr Manjit Gill QC (for Ms Reynolds) made a similar submission in relation to age. Attractively though counsel made these submissions, I would not accept them.

    60.  Age is a personal characteristic, but it is different in kind from other personal characteristics. Every human being starts life as a tiny infant, and none of us can do anything to stop the passage of the years. As the High Court of Australia said (in a different context) in Stingel v The Queen (1990) 171 CLR 312, 330:

    "the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness."

    There is nothing intrinsically demeaning about age. It may be disheartening for a man to be told that he cannot continue in his chosen job after 50, and it is certainly demeaning for a woman air hostess to be told that she cannot continue as cabin crew after the age of 40 (see Defrenne v Société Anonyme Belge de Navigation Aérienne (Case 43/75) [1976] ECR 455). But Mlle Defrenne was discriminated against on the ground of sex, not age. In relation to normal retirement ages lines have to be drawn somewhere, as Murgia explains.

The Michalak Catechism

    61.  In a well-known passage in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, 625, para 20, Brooke LJ suggested a series of questions to be asked when article 14 is in issue:

    "It appears to me that it will usually be convenient for a court, when invited to consider an article 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is 'No', then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are as follows. (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see section I (1) of the Human Rights Act 1998)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his Convention right has been free from article 14 discrimination."

 
continue previous