- These two
appeals raise important issues concerning the impact of provisions contained
in the European Convention on Human Rights ("ECHR") upon our municipal
legislation relating to certain State benefits. The relevant articles in ECHR
are 8, 14, and Article 1 of the First Protocol (to which I will refer for
convenience as "Article 1P"). The benefits in question are jobseeker’s
allowance and income support (Reynolds) and retirement pension (Carson).
In circumstances which I shall shortly explain, the weekly rates at which
jobseeker’s allowance and income support are paid are higher for persons aged
25 or over than for those between 18 and 25; and UK pensioners living abroad
in certain countries (mainly but not entirely, the countries of the Old
Commonwealth) do not receive the annual uprate to their pensions which is paid
to pensioners living here and those living in certain other foreign
jurisdictions. These facts are said to give rise to violations of Article 1P
or Article 14 read with Article 1P, or (Reynolds) Article 8 read with
Article 14.
- It is
convenient at once to set out the material ECHR provisions. Article 8
provides:
"1. Everyone has
the right to respect for his private and family life, his home and his
correspondence.
2. There shall be
no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others."
Article 14:
"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."
Article 1P:
"Every natural or
legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of
international law…"
THE OUTLINE
FACTS AND THE DOMESTIC LEGISLATION
- What follows
here is an account of the basic primary facts in each case, and the applicable
domestic legislation. There are other important factual matters which it will
be more convenient to set out when I have described the nature of the legal
challenge in each case, and come to confront its merits.
Reynolds
- The appeal is
from the decision of Wilson J given in the Administrative Court on 7th
March 2002, when he dismissed Ms Reynolds’ claim for judicial review. Sedley
LJ granted permission to appeal, limited as I shall explain to certain grounds
only, on 1st July 2002.
- Ms Reynolds
was born on 9th November 1976. She has a son who was born on 9th
June 2001. After leaving school she was in paid employment until she was made
redundant on 12th October 2000, and during that period national
insurance contributions were paid by her employers on her behalf and by
herself. On 24th October 2000 she applied for jobseeker’s
allowance, and was notified by letter of 14th November 2000 that
she qualified by virtue of her class 1 national insurance contributions. There
are two kinds of jobseeker’s allowance. "JSA(C)" is contributions-based. "JSA(IB)"
is income-based. Ms Reynolds satisfied the conditions for both, but was paid
JSA(C) only: in her particular circumstances she was not entitled to any
greater sum by way of JSA(IB). As she was a single claimant in the age range
18 – 24, she was paid at the rate of £41.35 per week. Had she been 25 or over,
she would have received £52.20 per week. It is important to notice that, as
regards JSA(C), a person’s contributions do not in whole or in part constitute
a fund from which the benefit is later paid. It is a contributory benefit only
in the sense that the payment of sufficient contributions is a condition of
entitlement.
- As from 12th
January 2001 Ms Reynolds was considered to be incapable of working because of
difficulties which she suffered relating to her pregnancy. Accordingly from
that date up to the birth of her baby (as I have said on 9th June
2001) she received income support rather than jobseeker’s allowance, but at
the same rate. Between 24th October 2000 and 9th June
2001 Ms Reynolds received housing benefit and council tax benefit in addition
to the successive payments of jobseeker’s allowance and income support. She
also received a maternity allowance for about the final three months of
pregnancy. Her case on the facts was and is that she was subjected to severe
hardship by virtue of the low rate of benefit which she got. Her evidence is
that because she had to pay about £20 per week for gas and electricity and to
repay a loan at the rate of £10 per week, she was constrained to borrow £4 or
£5 per week from her mother and to eat twice a week at her mother’s house in
order to make ends meet at the most basic level. Moreover she suffered from an
under-active thyroid gland and asthma; she had to take iron and vitamin
tablets to help with her anaemic condition; when she was pregnant she
discovered that she could not get free milk tokens; she was not entitled to
claim Social Fund or other hardship payments.
- In relation to
JSA(C), the difference in treatment on the basis of age is authorised by
s.4(1) of the Jobseekers Act 1995 and by regulation 79 of the Jobseeker’s
Allowance Regulations 1996. S.4(1) provides:
"In the
case of contribution-based jobseeker’s allowance, the amount payable
in respect of a claimant (‘his personal rate’) shall be calculated by
–
(a)
determining the age-related amount applicable to him; and
(b) making
prescribed deductions in respect of earnings and pension payments.
(2) The
age-related amount applicable to a claimant, for the purposes of
sub-section (1)(a), shall be determined in accordance with
regulations."
Regulation 79
provides:
"(1) In
the case of contribution-based jobseeker’s allowance, the age-related
amount applicable to a claimant for the purposes of section 4(1)(a)
shall be –
(a) in the
case of a person who has not attained the age of 18 [£31.45] per week;
(b) in the
case of a person who has attained the age of 18 but not the age of 25,
[£41.35] per week;
(c) in the
case of a person who has attained the age of 25 [£52.20] per week."
- There is like
provision relating to JSA(IB) which however I need not set out. As regards
income support I can summarise the position as the judge did at paragraph 9 of
his judgment. Ss. 124(4), 135(1) and 137(1) of the Social Security
Contributions and Benefits Act 1992 taken together provide that the amount of
any income support should be such as was determined in accordance with
regulations. Regulation 17(1) of and Schedule 2 to the Income Support
(General) Regulations 1987 provide that a single claimant to income support
aged not less than 18 but less than 25 should receive (in the absence of any
income) a sum which in April 2000 rose to £41.35, whereas such a claimant aged
not less than 25 should receive a sum which then rose to £52.20. Ms Reynolds’
essential case is that in relation to the amount of her benefit she is a
victim of discrimination contrary to ECHR Article 14 read with Article 1P,
because she is less favourably treated than a benefit claimant, otherwise in
like case with herself, who is over 25.
Carson
- The appeal is
from the judgment of Stanley Burnton J given in the Administrative Court on 22nd
May 2002, when he dismissed Ms Carson’s claim for judicial review. Permission
to appeal was granted by the judge below, as I understand it without
limitation to any particular issue or issues.
- Ms Carson
spent most of her working life in England, and while she was employed she and
her employer, and while she was self-employed she alone, paid full national
insurance contributions. I should say that just as with JSA(C), the
contributions do not in whole or in part constitute a specific fund from which
the pension is later paid: the benefits are paid out on what has been called a
"pay as you go" basis, from a notional fund topped up as required by grants
from the Exchequer. Ms Carson has been resident in South Africa since 1990.
When she was working in South Africa she paid voluntary contributions to
protect her right to a UK State pension. She began to draw her pension in
September 2000. She receives a British retirement pension of £103.62 per week.
That is made up of a basic pension of £67.50, an additional pension (under the
State Earnings Related Pension Scheme, or SERPS) of £32.17, and graduated
pension of £3.95. She has not received the increase in the basic retirement
pension of £5 (from £67.50 to £72.50) that has been paid since 9 April 2001 to
those entitled to it; nor has she received the percentage increase in the
additional pension and graduated pension which has been paid since that date.
It is accepted on her behalf that she is not qualified for these increases by
reason of the relevant provisions of UK legislation and delegated legislation,
apart from the Human Rights Act 1998 ("HRA"). While she remains in South
Africa, her total British pension will remain frozen at £103.62. Pensioners
who have paid like contributions to those made by Ms Carson but who remain
resident in the United Kingdom receive an annual uplift based on price
inflation. Others who live abroad, but in countries with which the United
Kingdom government has entered into certain forms of bilateral agreement, also
receive this uplift. I shall give the necessary details later. Ms Carson says
that she faces severe financial hardship and a very insecure retirement in
which she will be forced to continue to work in order to compensate for her
British pension being so much lower than she expected. Her essential case is
that in relation to the amount of her pension she is a victim of
discrimination contrary to ECHR Article 14 read with Article 1P, because she
is less favourably treated than those UK pensioners, whether living here or
abroad, who receive the inflation uplift.
- The relevant
domestic legislation is as follows. S.20(1) of the Social Security
Contributions and Benefits Act 1992 provides so far as relevant:
"(1)
Contributory benefits under this Part of this Act are of the following
descriptions, namely –
...
(f)
retirement pensions of the following categories -
(i)
Category A, payable to a person by virtue of his own
contributions".
S.21:
"(1)
Entitlement to any of the benefits specified in section 20(1) above...
depends on contribution conditions being satisfied...
(2) The
class or classes of contribution which, for the purposes of subsection
(1) above, are relevant in relation to each of those benefits are as
follows:
Category A retirement pension: Class 1, 2 or
3".
S.44 is
important:
"(1) A
person shall be entitled to a Category A retirement pension if -
- he is
over pensionable age; and
- he
satisfies the contribution conditions for a Category A retirement
pension specified in Schedule 3, Part I, paragraph 5;
and,
subject to the provisions of this Act, he shall become so entitled on
the day on which he attains pensionable age and his entitlement shall
continue throughout his life.
...
(3) A
Category A retirement pension shall consist of -
(a) a
basic pension payable at a weekly rate; and
(b) an
additional pension payable where there are one or more surpluses in
the pensioner’s earnings factors for the relevant years.
(4) The
weekly rate of the basic pension shall be £72.50 ..."
The
conditions stated in Schedule 3, Part I, para. 5 to the Act of 1992
provide that the individual must, for a requisite number of years of
his working life, have paid or been credited with contributions. The
requisite number of years during which contributions must have been
made is calculated according to the length of the individual’s working
life.
S.113 of
the 1992 Act contains general provisions as to disqualification from
receiving benefits, and for suspending payments. S.113(1) provides, so
far as relevant:
"Except
where regulations otherwise provide, a person shall be disqualified
for receiving any benefit under Parts II to V of this Act ... for any
period during which the person -
- is
absent from Great Britain; or
- is
undergoing imprisonment or detention in legal custody."
S.113(3)
provides:
"Regulations may provide for a person who would be entitled to any
such benefit but for the operation of any provision of this Act ... to
be treated as if entitled to it for the purposes of any rights or
obligations ... which depend on his entitlement, other than the right
to payment of the benefit."
The general
statutory disqualification from receiving Category A retirement pension by
reason of being absent from Great Britain is disapplied by Regulation 4(1)
of the Social Security Benefit (Persons Abroad) Regulations 1975, which
modifies the Act in relation to, inter alia, retirement pension. It
provides, so far as material:
"Subject
to the provisions of this regulation and of regulation 5 below, a
person shall not be disqualified for receiving ... a retirement
pension of any category ... by reason of being absent from Great
Britain."
Regulation 5
of the same Regulations, however, provides for the re-application of the
disqualification in regulations providing for the uprating of retirement
pensions:
"(1) Where
regulations made in consequence of an order under section 63 of the
Social Security Act 1986 (up-rating of benefits...) provide for the
application of this regulation to any additional benefit becoming
payable by virtue of that order, the following provisions of this
regulation shall... have effect in relation to the entitlement to the
benefit of persons absent from Great Britain.
...
(3) ...
where a person is not ordinarily resident in Great Britain immediately
before the appointed date, the provisions of these regulations (except
this regulation) shall not, unless and until he becomes ordinarily
resident in Great Britain, affect his disqualification while he is
absent from Great Britain for receiving -
...
(c)
... any additional retirement pension of any category..., if that
person had... become entitled to a retirement pension... before
the appointed date".
Regulation 3
of the Social Security Benefits Up-rating Regulations 2001 provided for
the application of the disqualification to the additional benefit payable
by virtue of the Social Security Benefits Up-rating (No. 2) Order 2001,
including the uprating of the retirement pension introduced by Article 4
of the Up-rating Order with effect from 9 April 2001:
"3.
Regulation 5 of the Social Security Benefit (Persons Abroad)
Regulations 1975 (application of disqualification in respect of
up-rating of benefit) shall apply to any additional benefit payable by
virtue of the Up-rating Order."
- In each tax
year the Secretary of State is obliged by virtue of s.150 of the Act of 1992
to review the sums specified (inter alia) in s.44(4) "in order to
determine whether they have retained their value in relation to the general
level of prices obtaining in Great Britain" and to lay an up-rating order
before Parliament where it appears to him that the general level of prices is
greater at the end of the review than it was at the beginning of the period.
The draft order must increase the sum specified in s.44(4) by a percentage
which is no less than that increase.
- Her Majesty is
empowered by Order in Council to make provision for modifying or adapting the
relevant legislation in its application to cases affected by an agreement with
a country outside the United Kingdom which provides for reciprocity in matters
relating to payments for purposes similar or comparable to the purposes of the
Act of 1992: see s.179 of the Act of 1992. There are extant agreements
allowing for payment of pension increases with a number of countries. UK
pensioners living in these countries, unlike Ms Carson and many others who
live in other foreign States, receive the uprate made year by year by the
Secretary of State under s.150. The part played by these agreements – "bilaterals"
in this appeal’s vocabulary – in the debate before us was of no little
importance. As I have said it will be convenient to describe the material
details when I come to confront the merits of Ms Carson’s case.
THE ISSUES
IDENTIFIED
- As I have
indicated, in Reynolds Sedley LJ gave permission to appeal on a limited
basis. He considered there were no arguable grounds to suggest a violation of
Article 3, 8, or Article 1P taken on its own; but that Article 14 read with
Article 1P and/or the common law might support a viable case of arbitrary
discrimination in the distribution of jobseeker’s allowance and income
support. After the grant of permission Mr Gill QC for Ms Reynolds and his
junior supplied a note to the court signifying an intention also to argue (a)
violation of Article 1P simpliciter and (b) violation of Article 14
read with Article 8. It is plain that this court’s permission would be
required if these further points were to be entertained. At the hearing Mr
Gill disavowed any argument based on the common law aside from the Convention.
- Mr Drabble QC
for Ms Carson advanced two arguments to support the conclusion that
withholding the retirement pension uprate from his client and others in her
position was unlawful: more formally, that regulation 3 of the Social Security
Benefits Up-rating Regulations 2001 was ultra vires. He submitted first
that regulation 3 was repugnant to Article 14 read with Article 1P because it
discriminated against Ms Carson on grounds of her place of residence without
any objective and reasonable justification. In the alternative, the regulation
constituted a violation of Article 1P taken on its own. I should say that
Stanley Burnton J raised of his own motion a further point which if good would
have disposed of Ms Carson’s case in limine. This was whether, having
regard to ECHR Article 1 (which I will not set out), a signatory State is only
obliged to secure the Convention rights for the benefit of persons residing
within its territorial jurisdiction. The judge held that Article 1 did not
operate so as to bar Ms Carson’s claim. That conclusion has not been contested
by the Secretary of State; and although there are, I am sure, nice questions
as to the reach of the Convention rights in light of ECHR Article 1, it is not
necessary to debate them in the Carson appeal.
- In both
appeals the major issue is whether there was a violation of Article 14 read
with Article 1P. Within this question there were various areas of debate which
I will explain in due course. But it is convenient first to clear the other
issues out of the way.
ARTICLE I OF THE
FIRST PROTOCOL TAKEN ON ITS OWN (BOTH APPEALS)
- One of those
areas of debate which I will have to confront when I come to deal with Article
14 read with Article 1P for the purposes of the Reynolds appeal is
whether non-contributory social security benefits such as income support may
constitute "possessions" within the meaning of Article 1P. However in
addressing (as I now do) the case made for violations of Article 1P
simpliciter, it is convenient to assume in Ms Reynolds’ favour that income
support indeed falls within the meaning of "possessions".
- In my judgment
the starting-point for this part of the case is the proposition, vouched by
the Strasbourg court’s judgment in Marckx v Belgium [1979] 2 EHRR 330,
that Article 1P applies only to a person’s existing possessions: it does not
guarantee a right to acquire possessions. It is then submitted for the
Secretary of State that domestic legislation which specifies the amount of any
State benefit, as has happened here in both appeals, cannot constitute an
interference with the right given by Article 1P: rather it merely
defines the property right in the particular case, whose security Article
1P may then protect.
- This position
taken by the Secretary of State is supported by a consistent line of
Strasbourg authority, some of it dealing in terms with complaints put forward
by UK pensioners resident abroad as to the government’s failure or refusal to
uprate their pensions. The first case is the decision of the Commission in
Muller (1975) 3 DR 25, in which the Commission held that Article 1P does
not guarantee a right to a pension of any particular amount. Then in X v
Italy (Application No 7459/76) the Commission rejected as manifestly
ill-founded a claim of infringement of Article 1P because the applicant had
not satisfied the requirements under his domestic law for the payment of a
pension. Muller and X v Italy were both referred to in JW and
EW v UK (Application No 9776/82), which was the first case in which the
Commission considered a complaint that the UK government’s failure to pay an
uprated pension infringed the pensioner’s Convention rights. There, the
applicants were emigrating to Australia. The Commission rejected the complaint
as inadmissible. In view of its particular relevance Stanley Burnton J set out
the reported extract in full. I will cite just these following passages:
"3. The Commission
has considered the applicants’ complaint under Article 1 of the Protocol. It
first recalls that it has previously held that although this provision does
not as such guarantee a right to a pension, the right to benefit from a social
security system to which a person has contributed may in some circumstances be
a property right protected by it. However the Commission also held that
Article 1 does not guarantee a right to a pension of any particular amount,
but that the right safeguarded by Article 1 consists, at most, "in being
entitled as a beneficiary of the social insurance scheme to any payments made
by the fund" (App. No. 5849/72, Müller v. Austria, D.R 3, p.25 at p.
31). It has further held that before the right to benefit protected by Article
1 can be established, it is necessary that the interested party should have
satisfied domestic legal requirements governing the right (App. No. 7459/76,
X. v. Italy, D.R. 11, p. 114).
In the present
case when the applicants emigrate to Australia their entitlement to benefit
from the United Kingdom pension scheme will come to be regulated by different
rules of domestic law, under which they will cease to qualify for payment of
future pension increases contemplated by the relevant legislation. To that
extent they will not satisfy domestic legal requirements to benefit from the
United Kingdom pension scheme. Even if the right to benefit from a scheme will
normally also apply to the regular increases this is not necessarily the case
where a person leaves the country where the specific scheme operates. The
Commission notes that in many countries specific restrictions as to the
payment of social security benefits to foreign countries exist or have
existed… In the Commission’s view such operation of domestic law does not
amount to a deprivation of possessions infringing Article 1 of the Protocol
and there is thus no appearance of any breach of this provision."
The Commission in
JW and EW proceeded also to reject the applicants’ complaint of
violation of Article 14 read with Article 1P.
- Two years
after its decision in JW and EW, the Commission considered another
complaint as to the UK government’s failure to pay uprated pension, this time
by an applicant who had emigrated to South Africa. In Corner
(Application No 11271/84), the Commission rejected as manifestly ill-founded
the applicant’s complaint that the failure to pay the uprate infringed Article
1P. It also held, again, that there was no violation of Article 14 read with
Article 1P. The Commission said this:
"The Commission
recalls that it has previously held that, although Article 1 of Protocol No. 1
does not, as such, guarantee a right to a pension, the right to benefit from a
Social Security system to which a person has contributed may, in some
circumstances, be a property right protected by it… However, the Commission
has also held that Article 1 does not guarantee a right to a pension of a
particular amount, but that the right safeguarded by Article 1 consists, at
most, ‘in being entitled as a beneficiary of the social insurance scheme to
any payments made by the fund’… in accordance with domestic legal requirements
… Further, the Commission has held that the ‘freezing’ of a pension at a
particular level when a person leaves the United Kingdom does not amount to a
deprivation of possessions infringing Article 1 of the Protocol..."
- The appellants
seek between them to escape the coils of this learning by reference to other
cases, namely Gaygusuz v Austria (1996) 23 EHRR 364, Szrabjer and
Clarke v UK (October 1997: Applications 27004/95 and 27011/95), and
Willis v UK (June 2002: Application No 36042/97). But Gaygusuz and
Willis were cases on Article 14; indeed, as I shall show, Gaygusuz
is an important authority for some of the points we shall have to consider
in dealing with the principal Article 14 issue arising in these appeals.
Szrabjer was rather different. There, the applicants were denied the
earnings-related element of their pensions while they were in prison, pursuant
to s.113(1)(d) of the 1992 Act which I have set out. They claimed violations
both of Article 1P, and of Article 14 read with Article 1P. The Commission
declared the complaints inadmissible. It held (referring to Gaygusuz)
that the earnings-related pension amounted to a pecuniary right for the
purposes of Article 1P; however its being withheld from the applicants while
they were in prison could be considered (as the government contended) as being
in the public interest. Accordingly the complaint of a violation of Article 1P
simpliciter was manifestly ill-founded. Mr Drabble in his skeleton
argument (paragraph 61) sought to build out of this a positive holding to the
effect that the disqualification imposed by s.113(1)(d) operated so as to
amount to a deprivation of possessions for the purposes of Article 1P. I do
not believe that any such proposition can be got from the reasoning in
Szrabjer. All that can be said (as Mr Howell QC for the Secretary of State
suggested) is that the Commission did not state, as a reason for holding the
complaint inadmissible, that the disqualification could not amount to
such a deprivation.
- I should
notice also that in Carlin v UK (December 1997: Application No
27537/95), decided as I understand it shortly after Szrabjer, the
Commission dismissed as manifestly unfounded a complaint that the suspension
of Industrial Injuries Disability Benefit during a person’s imprisonment
involved any violation of Article 1P. It reiterated that "it is still
necessary, in order for such a right to be established, that the person
concerned should have satisfied domestic legal requirements…"
- I conclude
that no violation of Article 1P taken on its own is disclosed on the facts in
either of these appeals. The argument to the contrary involves the proposition
that Article 1P, at least in some circumstances, confers a right to acquire
property. But that is contradicted by the plain words of the Article and
by the learning in Strasbourg from the case of Marckx onwards.
ARTICLE 14 READ
WITH ARTICLE 8 (REYNOLDS)
- As I have
indicated, permission is in my judgment needed for this point to be raised
(though Mr Gill did not distinctly accept as much). I would give permission,
only because it is convenient to treat all the issues that have been canvassed
on the same procedural footing. However I should say at once that there is but
limited space in the appeal’s geography for this point to operate: it only has
independent life if (the submission on Article 1P taken on its own being
rejected, as I would reject it) the court were to hold, in relation to Article
14 read with Article 1P, (a) that payments of income support do not constitute
"possessions" for the purposes of the argument, but (b) that unjustified
discrimination was nonetheless established. In that case Ms Reynolds could
only rely on Article 14 vis-à-vis the period in which she was paid
income support rather than jobseeker’s allowance by asserting a breach of the
Article read with Article 8. Since for my part I am satisfied for reasons
which I will explain that Ms Reynolds’ complaint of discrimination should fail
on its merits, if my Lords agree it follows that this part of the case is
moot. However, out of respect for the argument, I will deal with it shortly.
- It is common
ground that Article 14 confers no free-standing right, independent of the
other substantive Convention provisions. It requires only that the rights
guaranteed by those provisions be enjoyed without discrimination of the kinds
stated in the Article. It may be violated though there is no violation of the
substantive right (otherwise, of course, it would be otiose, or at best a rule
of interpretation of the substantive rights). What has to be shown is that the
act complained of (a) falls within the "ambit" of a substantive Convention
right, (b) involves discrimination against the complainant on a prohibited
ground, which (c) is not objectively justified. All this is elementary and I
will not take time citing authority to support it. Plainly all these
propositions will have to be considered when I come to Article 14 taken with
Article 1P.
- Mr Gill
submits that the facts, which I have already outlined, disclose circumstances
of such marked hardship suffered by Ms Reynolds that the levels of jobseeker’s
allowance and income support received by her fall readily within the ambit of
Article 8. While of course we must not lose sight of the fact that there is no
complaint here of any violation of Article 8 read on its own, it is in my
judgment important to recognise that on the Strasbourg learning Article 8 does
not require the State to provide a home: Chapman v UK (2001) 33 EHRR
18, paragraph 99; nor does it impose any positive obligation to provide
financial assistance to support a person’s family life or to ensure that
individuals may enjoy family life to the full or in any particular manner:
Vaughan v UK (1987) Application No 12639/87; Anderson and Kullmann v
Sweden 46 DR 251; Petrovic v Austria [2001] 33 EHRR 14, paragraph
26.
- At the same
time the European Court of Human Rights has accepted that there may be
circumstances in which Article 8 imposes a positive obligation upon States to
take steps to secure or to further respect for the home or family life. In
this territory, however, the States enjoy a wide margin of appreciation:
Abdulaziz & ors v UK (1985) 7 EHRR 471, paragraph 67. It is also true that
in establishing a system or regime to comply with a Convention obligation, a
State may include within the system elements that are not strictly required by
the Convention itself, as in the case of appeal rights in the context of
Article 6; and where that is done, the distribution of these supererogatory
rights must comply with Article 14: Belgian Linguistics (No 2)
(1968) 1 EHRR 252, 283.
- In the present
case I am clear that the provision of jobseeker’s allowance and income support
has not been made by the United Kingdom legislature and executive out of
compliance with any actual or perceived positive obligation arising under
Article 8. Such positive obligations may arise where there is a "direct and
immediate link between the measures sought by an applicant and the latter’s
private and/or family life": Botta v Italy (1998) 26 EHRR 241,
paragraph 34. Recognised instances include circumstances where the criminal
law is required to offer protection for family life against particular dangers
(see again Botta, paragraph 34). But they cannot, in my
judgment, extend to include whole swathes of a State’s social security system
without embracing that system within the general duty vouchsafed by Article 8.
That, however, would be contrary to the learning to which I have referred in
paragraph 26.
- Mr Gill’s
argument as to the ambit of Article 8 cannot in my judgment be limited to the
particular circumstances of Ms Reynolds’ case. I do not mean to belittle her
undoubted difficulties, but it is clear that like difficulties are common to
many people in receipt of benefit. Mr Gill’s submission, if correct, would in
principle subject the general welfare provisions made by the State to the
requirements of Article 8 and of Article 14 read with Article 8. That is not
the law. There is nothing in this argument.
ARTICLE 14 READ
WITH ARTICLE 1 OF THE FIRST PROTOCOL
- Mr Howell
accepted that age (Reynolds) and place of residence (Carson)
each constituted a "status" for the purposes of Article 14. But as I have
foreshadowed this major issue raises a number of discrete areas of debate. (1)
(Reynolds only) Is a non-contributory benefit, in this case income
support, within the meaning of "possessions" in Article 1P for the purpose of
the Article 14 argument? (2) (Carson only) Was there discrimination at
all? Ms Carson asserted that her situation should be viewed against two
classes of comparators: pensioners living in the United Kingdom, and
pensioners living in those foreign States where the uprate was paid. Stanley
Burnton J held that neither class of comparator was in an analogous situation
to that of the appellant, so that there was no discrimination upon which
Article 14 might bite. (It is not conceded that there was discrimination in
Reynolds; but I regard the point as barren in the Reynolds appeal:
see below, paragraph 75.) (3) (both appeals, or Reynolds only if
discrimination is not made out in Carson) Was there on the facts in
each case an objective and reasonable justification for the discrimination?
For reasons which I will explain, questions (2) and (3) seem to me to overlap.
A fourth question was raised by myself in the course of argument, which, if it
possessed any force, logically would come first. This was whether Article 14
was engaged in these cases at all; that is to say, whether the facts in each
appeal actually touched the enjoyment of the right guaranteed by Article 1P.
- Although with
some considerable misgiving I have concluded that this last issue does not
drive the case in the Secretary of State’s favour, and Mr Howell was right to
eschew any reliance on the suggestion that Article 14 was not engaged in these
appeals at all, I propose nevertheless to deal with it. The basis upon which
the point ultimately falls to be rejected is closely connected with the steps
towards the answer to Question (1) above (is income support an Article 1P
"possession"?); and some discussion of the subject may serve to clarify the
scope of Article 14, or at least expose its attendant difficulties. I turn to
this point therefore first of all.
IS ARTICLE 14
(READ WITH ARTICLE 1P) ENGAGED AT ALL?
- I have already
stated (paragraph 25) that, as is common ground, Article 14 confers no
free-standing right, but requires only that the rights guaranteed by the
Convention’s substantive provisions be enjoyed without discrimination of the
kinds stated in the Article. The point is put, if I may respectfully say so,
with particular clarity at paragraph 28 of Petrovic:
"The Court has
said on many occasions that article 14 comes into play whenever ‘the subject
matter of the disadvantage constitutes one of the modalities of the exercise
of the right guaranteed’, or the measures complained of are ‘linked to the
exercise of a right guaranteed."
- What troubled
me at the outset of the argument was that I could not see, on the facts of
either appeal, how any exercise of the Article 1P right was involved such as
might engage Article 14. The right guaranteed by Article 1P is to peaceful
enjoyment of one’s possessions, and not to be deprived of one’s possessions
save on a permitted justification. As it seemed to me, Article 14 would come
into play only in certain limited sets of circumstances. One such would arise
if there were some apparent or potential interference with a substantive
Convention right which could however be justified if the case were looked at
in isolation (so that there would be no violation of Article 1P simpliciter),
but which would fall to be condemned under Article 14 upon its being shown
that the justification imposed, on discriminatory grounds of a kind
contemplated in the Article, a heavier burden on the complainant than was
imposed on another person or class of persons in a comparable situation.
- Such a state
of affairs might most easily be illustrated by reference to what are sometimes
called the political rights guaranteed by Articles 8 – 11. In each of these,
paragraph 2 of the Article states considerations upon which the right may be
abrogated or qualified, essentially on public interest grounds. Now, one might
readily construct an example where (say) free speech in some particular area
is proscribed by the State in various instances. Grounds to justify the
prohibition are then put forward by the State under Article 10 paragraph 2. In
the example, let it be said that in each given instance taken alone the
proscription is well justified under paragraph 2 on the grounds put forward.
However the grounds of justification thus advanced are more, or less,
intrusive or onerous between instances and the difference is attributable to a
prohibited discriminatory ground. In that case the fact of such differential
justifications between classes (or persons) will offend Article 14 unless the
State can justify the difference or differences.
- Another
circumstance which would expose a violation of Article 14 might arise in
relation to the substantive rights guaranteed by ECHR Article 6. Here, the
case would not be constituted by the existence of a potential breach of the
substantive right which is however justified, where the Article 14 complaint
must rest in discriminatory justifications. In this instance the Article 14
complaint rests in discrimination as regards what counts as breach of the
primary right; there are no issues of justification. Article 6 contains no
analogue to paragraph 2 as it appears in each of Articles 8 – 11. However, the
standard which the law demands for compliance with the requirement that a
person’s civil rights or obligations (or a criminal charge against him) be
determined under Article 6 at "a fair and public hearing within a reasonable
time by an independent and impartial tribunal" is not a unitary or singular
standard or set of principles. In the broadest terms there will be a spectrum
of standards within which the court will not interfere. It may be said that
this is so by force of the Strasbourg court’s doctrine of "margin of
appreciation". I prefer to say that in the real world there are inevitably
shades and degrees of every one of the variables in Article 6: fairness,
publicity, delay, independence, impartiality. So it is that in connection with
Article 6 a complaint under Article 14 may arise where it is said that upon
any of these variables the State has applied a different standard to one class
of persons compared to another, and done so on a prohibited discriminatory
ground. A crude instance of Article 6/14 discrimination would thus arise if a
legal system adopted a different rule for the admission of confession evidence
for members of one class of society (or for members of a particular racial
group) compared with the rule adopted for another. In the courts of ancient
Athens the evidence of a slave was inadmissible unless he had been
tortured.
- In each of
these examples, and one could generate many others, the enjoyment of the
substantive Convention right is engaged on the facts of the case fair and
square. My difficulty was in seeing how that could be so in these present
appeals. In neither case was there any interruption of the appellant’s
peaceful enjoyment of her possessions. Nor is there any question of either
appellant having being deprived – let alone unjustifiably deprived – of any of
her possessions. Each appellant has had in full measure what the domestic law
entitles her to have. The complaint of each, in contrast, is that the domestic
law should have given her more. It is plain that Article 1P provides no such
entitlement whatever; I have dealt with the argument for a violation of
Article 1P taken on its own. In those circumstances I was unable to see how on
the facts there could be any complaint of Article 14 taken with Article 1P.
Such a complaint might arise if the State offered differential justifications
as between persons or classes for measures of deprivation of property. That
would be analogous to the first example given above relating to Article 10;
but nothing of that sort remotely arises in these appeals.
- It is,
however, plain that the Strasbourg court has not confined the scope of Article
14 within limits of the kind I have described. Here, I should introduce the
facts of Gaygusuz, to which I have already referred in passing. The
applicant was a Turkish national resident in Austria. While working there he
had paid unemployment insurance contributions. At a stage when he was
unemployed he applied for an advance on his pension in the form of emergency
assistance. That was available under the material Austrian legislation, but
one of the conditions was that the applicant should "possess Austrian
nationality", and so the applicant was refused. The court held, unanimously,
that Article 14 taken with Article 1P applied to the case and had been
violated. It said:
"36. According to
the court’s established case law, Article 14 of the Convention complements the
other substantive provisions of the Convention and the Protocols. It has no
independent existence since it has effect solely in relation to ‘the enjoyment
of the rights and freedoms’ safeguarded by those provisions. Although the
application of Article 14 does not presuppose a breach of those provisions –
and to this extent it is autonomous – there can be no room for its application
unless the facts at issue fall within one or more of them.
37. The applicant
and the Turkish Government argued that Article 14 of the Convention was
applicable in conjunction with Article 1 of Protocol No. 1. They referred to
the reasoning of the Commission, which found that the award of emergency
assistance was linked to the payment of contributions to the unemployment
insurance fund.
38. The Austrian
Government, however, submitted that emergency assistance did not come within
the scope of Article 1 of Protocol No. 1. Entitlement thereto did not result
automatically from the payment of contributions to the unemployment insurance
fund. It was an emergency payment granted by the State to people in need.
Consequently, Article 14 of the Convention was not applicable either.
39. The Court
notes that at the material time emergency assistance was granted to persons
who had exhausted their entitlement to unemployment benefit and satisfied the
other statutory conditions laid down in… the… Act.
Entitlement to
this social benefit is therefore linked to the payment of contributions to the
unemployment insurance fund, which is a precondition for the payment of
unemployment benefit. It follows that there is no entitlement to emergency
assistance where such contributions have not been made.
40. In the instant
case it has not been argued that the applicant did not satisfy that condition;
the refusal to grant him emergency assistance was based exclusively on the
finding that he did not have Austrian nationality and did not fall into any of
the categories exempted from that condition.
41. The Court
considers that the right to emergency assistance – in so far as provided for
in the applicable legislation – is a pecuniary right for the purposes of
Article 1 of Protocol No. 1. That provision is therefore applicable without it
being necessary to rely solely on the link between entitlement to emergency
assistance and the obligation to pay ‘taxes or other contributions’.
Accordingly, as
the applicant was denied emergency assistance on a ground of distinction
covered by Article 14, namely his nationality, that provision is also
applicable."
- The court
concluded that there had been a violation of Article 14 taken with Article 1P.
In doing so, as it seems to me, by necessary implication it held that although
the conditions of entitlement to a State benefit under a domestic legal scheme
(and an applicant’s failure to fulfil them) – as opposed to any conditions
under which such a benefit might be withdrawn – could not in principle
give rise to a claim under Article 1P taken on its own, yet they could yield a
good claim under Article 14 taken with Article 1P. On this footing the reach
of Article 14 is longer than it would be if it were confined to instances of
the kind I gave in paragraphs 34 and 35. However, it is correctly submitted
for the appellants that there is a consistent line of Strasbourg authority
which favours the longer reach. Reference is made to Belgian Linguistics
(No 2) 1 EHRR 252 (in particular at paragraph 9), Walden v
Liechtenstein (2000: Application No 33916/91), Matthews v UK (2000:
Application No 40302/98) and Shackell v UK (2000: Application No
4851/99), whose texts with respect I need not cite, as well as Gaygusuz.
- With great
respect, I am driven to confess to a good deal of unease at this line of
authority. It seems to me to represent an extension of the scope of Article
14, forged no doubt in the cause of liberal values, beyond what the High
Contracting Parties would by the language of the Article appear plainly to
have agreed. I have the greatest difficulty in seeing how the attribution of
so broad a reach can be conformed with Article 14’s actual words, "[t]he
enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination…" Despite the court’s protestations to the
contrary, the approach taken in the cases begins to give Article 14 a life of
its own – beyond the enjoyment of the substantive Convention rights as
such. Yet Article 14 must surely stand in contrast to Article 1 of the new
Protocol 12, which has been opened for signature but which the United Kingdom
has not ratified. It clearly occupies much greater territory than Article 14.
It provides:
"1. The enjoyment
of any right set forth by law 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.
2. No one shall be
discriminated against by any public authority on any grounds such as those
mentioned in paragraph 1."
Paragraph 1 of
this provision remains adjectival, as is Article 14, but now it is adjectival
to "any right set forth by law", including, presumably, any provision
of municipal law. If that is right, it represents a very much bigger
anti-discrimination provision than that apparently contained in Article 14.
And paragraph 2 creates a true free-standing right, applicable in relation to
any action by a public authority. Now, I do not of course suggest that the
Strasbourg cases have gone so far as to hold that Article 14 as it presently
stands possesses the reach of either paragraph of Article 1 of Protocol 12.
But the contrast between the two sets of provisions is a focussed reminder of
what must have been the intended limitations of Article 14.
- In all these
circumstances I have considered whether it would be right to depart from the
Strasbourg learning on this question of the scope of Article 14, and to hold
that on that measure’s true interpretation it is not engaged at all on the
facts of either of these appeals. Our duty under HRA s.2(1) is to "take into
account" the Strasbourg case-law. It is trite that we are not bound by it.
However in R. (Alconbury Developments Ltd) v Secretary of State for the
Environment [2001] 2 WLR 1389 Lord Slynn of Hadley said at paragraph 26:
"In the absence of
some special circumstances it seems to me that the court should follow any
clear and constant jurisprudence of the European Court of Human Rights."
- As the
argument developed it became clear that the integrity of this broad approach
to the scope of Article 14 was as I have already said (paragraph 31)
intertwined with another issue arising in the Reynolds appeal, namely,
the first question which I identified earlier at paragraph 30: is a
non-contributory benefit, in this case income support, within the meaning of
"possessions" in Article 1P for the purpose of the Article 14 argument? It is
thus convenient to pass on to that question, whose resolution will show why –
in addition to general reasons of comity, certainty and finality of
proceedings – I would not in the end depart from the Strasbourg learning on
this issue of the scope of Article 14.
REYNOLDS: IS A
NON-CONTRIBUTORY BENEFIT (HERE INCOME SUPPORT) WITHIN THE MEANING OF
"POSSESSIONS" IN ARTICLE 1P FOR THE PURPOSE OF THE APPLICATION OF ARTICLE 14?
- Mr Howell
submitted that not every social security benefit which a national legal system
may for the time being provide constitutes a "possession" for the purpose of
Article 1P. A benefit may do so, but only if there is shown to be a link
between the payment of contributions and entitlement to the benefit; in the
Reynolds appeal, the link is made out in the case of contribution-based
jobseeker’s allowance, but not in the case of income support. The payment of
contributions to a fund (whether by or in respect of an individual) may in
certain circumstances create a property right in a portion of the fund which
Article 1P may protect. Mr Howell cited a succession of cases to make the
submission good: Muller, JW and EW, Corner, Carlin
and Gaygusuz, to all of which I have referred, and also
Jankovic v Croatia (2000) Application No 43440/98.
- There was, I
think, no contest but that the Strasbourg jurisprudence pre-Gaygusuz
supported Mr Howell’s argument. But Mr Gill placed particular emphasis on
paragraph 41 of Gaygusuz, which I will cite again for convenience:
"The Court
considers that the right to emergency assistance – in so far as provided for
in the applicable legislation – is a pecuniary right for the purposes of
Article 1 of Protocol No. 1. That provision is therefore applicable without it
being necessary to rely solely on the link between entitlement to emergency
assistance and the obligation to pay ‘taxes or other contributions’."
Mr Gill referred
also to decisions arrived at after Gaygusuz (Matthews, Willis
(Application No 36042/97) and Wessels-Bergervoet v Netherlands
(Application No 34462/97)), as showing some implicit support for the view
that the making of contributions was not a necessary pre-condition for the
treatment of a benefit as a possession, or at least that since Gaygusuz
the Strasbourg court has not spoken with an entirely clear voice on the
subject. Wilson J accepted Mr Howell’s argument: paragraph 17 of the judgment.
In Carson, however, Stanley Burnton J also discussed the Gaygusuz
decision and concluded (paragraph 46):
"The second
sentence of paragraph 41 of the Court’s judgment is framed in not untypical
Delphic terms. It is unnecessary for me to decide what the Court intended to
lay down, but I read it as holding that a state benefit may be a pecuniary
right protected by Article 1 of the First Protocol even if it is not a
contributory benefit entitlement to which is conditional on compulsory payment
of a tax or other contribution. This is logical. There would be some logic in
restricting Article 1 to pecuniary rights derived from a defined investment
funded by individual contributions. In such a case the right is a true right
of property. Where, however, the payment of contributions is no more than a
condition for entitlement to a benefit (as I assume was the position in
Gaygusuz), it is difficult to see why entitlement to a benefit resulting
from satisfaction of that condition should create a pecuniary right protected
by Article 1, when entitlement to benefit resulting from satisfaction of some
other condition should not. In a case such as the present, the payment of
benefit does not create a right of property in any real sense."
- At first
glance it seemed to me that this reasoning was plainly correct. If a person
fulfils the conditions set by domestic law for entitlement to benefit, he is
as surely entitled to receive the benefit – in theory, to sue for it – where
the conditions have not required him to make prior contributions as where they
have. The entitlement is a "possession" in both cases, or neither.
- It is clear,
however (and uncontentious), that the term "possessions" bears an autonomous
meaning for the purposes of ECHR; and in the field of social security the
Strasbourg court has drawn a line, from the decision in Muller onwards,
between contributory and non-contributory benefits. I do not accept Mr Gill’s
submission that the law of the Convention took a different course in
Gaygusuz. The court there had to deal with the Austrian government’s
submission that emergency assistance did not come within the scope of Article
1P because (to summarise the argument in my own words) the payment of
contributions was only a necessary, not a sufficient, condition of entitlement
to the benefit (paragraph 38). That was rejected: paragraphs 39 and 41. The
court pointed out (39) that entitlement to the benefit was linked to the
payment of contributions to the unemployment insurance fund. As I read these
paragraphs that fact was in truth regarded as a premise of the
conclusion that the right to the benefit was a pecuniary right for the
purposes of Article 1P. The use of the adverb "solely" in paragraph 41, which
is really the linchpin of Mr Gill’s argument, is I think no more than a
reflection of the court’s rejection of the view that Article 1P would not bite
unless the payment of contributions was a sufficient condition of entitlement
to the benefit in question.
- Mr Gill is not
assisted by later Strasbourg decisions; quite the contrary. I will not take
time with all the cases. In Szrabjer & Clarke v UK (Applications Nos
27004/95 and 27011/95) the Commission stated:
"… the Commission
recalls the case of Gaygusuz… In that case the Court noted that
emergency assistance was linked to and dependent upon a payment of
contributions and held that in these circumstances the right to emergency
assistance was a ‘pecuniary right’ under Article [1P]."
In Azinas v
Cyprus (Application No 56679/00: judgment delivered on 20th
June) the court said (paragraph 33):
"… in its judgment
in Gaygusuz… (… ## 39 – 41), the Court held that entitlement to a
social benefit is linked to the payment of contributions…"
There is other
learning to like effect. There is nothing in the authorities to suggest that
the Strasbourg court perceives itself as having taken a new line in
Gaygusuz, or that it has done so in any other case.
- It seems to
me, then, that the law of the Convention is settled on this point as to the
scope of "possessions" for the purpose of Article 1P. The policy of the cases
is, I think, that while States are in general free to grant, amend or
discontinue social security benefits and to change the conditions for
entitlement to them as they please without any ECHR constraint, yet where
contributions are exacted as a price of entitlement the contributor should be
afforded a measure of protection: it has, so to speak, cost him something to
acquire the benefit.
- This approach
throws much needed light on the scope of Article 14 read with Article 1P,
which as I have explained has caused me considerable difficulty. We can now
see that the Strasbourg court has treated the payment of contributions as
giving rise to a species of pecuniary right, such as to constitute a
"possession" for the purpose of Article 1P. A reduction or qualification of
the right to be paid the benefit thus engages Article 1P, although it may not
amount to a violation of the Article simpliciter because the Convention
confers no right to receive any particular amount. However, the reduction or
qualification is subject to the constraints of Article 14: if it is done on
discriminatory grounds, the discrimination must be justified.
- I am not sure
that this line of reasoning lays my difficulty with the scope of Article 14
entirely to rest. But it provides a clear enough basis for setting the edge of
ECHR protection at the point at which, it seems, the court has undoubtedly set
it. In these circumstances I think it would be quite wrong to depart from the
Strasbourg learning on the subject. It follows that Ms Reynolds’ complaint of
a violation of Article 14 read with Article 1P can only bite on the payments
of jobseeker’s allowance made to her, and not income support. Wilson J was of
the same view (paragraph 17 of his judgment).
- I should
acknowledge, before leaving this part of the case, the submissions made by Mr
Howell based on the 1961 European Social Charter entered into by States
members of the Council of Europe, and the revised Charter which was opened for
signature in May 1996 but has not been ratified by the United Kingdom. The
argument is that these provisions made very substantial provision for social
security, but conferred no right of individual application (and the 1961
charter contained no analogue of Article 14); in those circumstances; if the
scope of "possessions" within Article 1P were as wide as Mr Gill contends – as
wide as provided in the 1961 Charter – the latter document would actually
constitute a retrograde step, since the ECHR regime confers rights of
individual petition and of course includes Article 14. A like argument, in the
context of trade union rights under ECHR Article 11, found favour with the
Strasbourg court in Belgian Police v Belgium 1 EHRR 578, 590 – 591
(paragraph 38). I need say only that this is grist to Mr Howell’s mill.
CARSON: WAS THERE
DISCRIMINATION WITHIN THE MEANING OF ARTICLE 14?
- The question
here is whether there are any true "comparators" to pensioners living abroad
like Ms Carson who do not receive the annual uprate to their UK pension. There
can be no discrimination unless its alleged victim can point to other persons
who are in an analogous or relevantly similar situation, yet are treated more
favourably. If there is no such analogous situation, any difference in
treatment between X and Y has no legal significance for the purposes of
Article 14 (or, I would add, any rational law of discrimination). Mr Drabble
names two sets of comparators: (1) UK pensioners who like Ms Carson live
abroad, but in countries where the uprate is paid; (2) UK pensioners living in
the UK, all of whom are paid the uprate.
- I must explain
rather more of the background than has so far appeared. First, it is right to
say that the case has considerable implications for many pensioners and for
the national finances. According to the Secretary of State, as at January
2002, of some 900,000 pensioners and widow beneficiaries who live abroad less
than half (some 420,000) receive the annual uprate. The cost of extending
uprating to all pensions from the time when each was awarded would cost an
additional £3bn. There is some other material about the figures, but I need
not set it out. This was stated in evidence filed on behalf of the Secretary
of State:
"Successive
Governments have taken the view that the level of increases in retirement
pensions relates to conditions in the UK and that it would not be right to
impose an additional burden on contributors and taxpayers in the UK in order
to pay pension increases to people who have chosen to become resident
elsewhere in the world."
A number of
attempts in Parliament to require the government to pay the uprate to those in
Ms Carson’s position have foundered in both Houses of Parliament: a DSS
Memorandum of 1996 on the uprating of state retirement pensions payable to
people resident abroad, submitted to the Social Security Committee of the
House of Commons, referred in particular to amendments tabled in both Houses
in June and July 1995 during the passage of the Pensions Bill, calling for
uprating to be paid. All were defeated by large majorities.
- Since the
National Insurance Act 1946 came into force, the general position has always
been that British pensioners who are not in Great Britain have not received
uprated pensions. Only those in the European Economic Area and in States with
which the UK has entered into bilateral agreements requiring such payments
receive them. Between 1948 and 1992 the UK entered into bilateral agreements,
or reciprocal social security agreements, with a number of foreign States.
With one minor exception, the agreements entered into after 1979 fulfilled
earlier commitments given by the UK government. Agreements with Australia, New
Zealand and Canada came into force in 1953, 1956 and 1959 respectively;
however they did not require payment of uprated pensions. The agreement with
Australia was terminated by it with effect from 1 March 2001, because of the
refusal of the UK Government to pay uprated pensions to its pensioners living
in Australia. Uprating has never been applied to those living in South Africa,
Australia, Canada and New Zealand. The EC Regulations on Social Security for
Migrant Workers require uprating of benefits throughout the European Union. In
practice, the entry of the UK into the EC had little effect on the provision
for uprating pensions in the Member States, because there were pre-existing
reciprocal agreements with all of them except Denmark providing for payment of
uprate.
- There is no
doubt but that the overall position as it stands today is a haphazard
consequence of events, including not least the conclusion of the various
bilateral agreements, happening over time. On 13th November 2000
the Minister of State said this in the House of Commons:
"I have already
said I am not prepared to defend the logic of the present situation. It is
illogical. There is no consistent pattern. It does not matter whether it is in
the Commonwealth or outside it. We have arrangements with some Commonwealth
countries and not with others. Indeed, there are differences among Caribbean
countries. This is an historical issue and the situation has existed for
years. It would cost some £300 million to change the policy for all
concerned…"
I should notice
also what was said in the Third Report (January 1997) of the House of Commons
Social Security Committee:
"It is impossible
to discern any pattern behind the selection of countries with whom bilateral
agreements have been made providing for uprating."
- Some
explanation of these bilateral agreements is given in the DSS Memorandum to
which I have already referred:
"17.
The main purpose of reciprocal agreements so far has been to
provide a measure of social protection for workers, and the
immediate members of their families, when moving from one country
to the other during their working lives. In effect, they generally
prevent such workers from having to contribute to both countries’
Social Security schemes at the same time while ensuring that they
retain benefit cover from either one country or the other. On
reaching pensionable age, such workers who have been insured in
two or more countries’ schemes can receive a pension from each
which reflects the amount of their insurance in each.
18.
Whether a reciprocal Social Security agreement with another
country is entered into depends on various factors, among them the
numbers of people moving from one to the other, the benefits
available under the other country’s scheme, how far reciprocity is
possible and the extent to which the advantages to be gained by an
agreement outweigh the additional expenditure likely to be
incurred by the UK in negotiating and implementing it. Where an
agreement is in place, the flow of funds may differ depending on
the level of each country’s benefits and the number of people
going in each direction.
19.
Since June 1996, the Government’s policy has been that future
reciprocal agreements should normally be limited to resolving
questions of liability for social security contributions…"
At paragraph
38 of the same document observations were made which foreshadowed the
Minister of State’s words on 13th November 2000:
"Surely no
one would have deliberately designed a policy of paying pensions to
people living abroad intending to end up in the position we are at
today… It is impossible to discern any pattern behind the selection of
countries with whom bilateral agreements have been made providing for
uprating."
- Before turning
to the question in hand, namely whether there are any true comparators in an
analogous situation to that of Ms Carson, it is convenient to refer to the
approach to be taken to complaints of discrimination contrary to Article 14 as
it was commended by Brooke LJ in Michalak v London Borough of Wandsworth
[2003]1 WLR 617 (paragraph 20):
"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:
(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 the other persons put forward for comparison ("the chosen
comparators")?
(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 aims sought to be
achieved?"
(In fact, of
course, the claim would only be "likely to fail" in a case where question (iv)
were reached if the answer to that question were "Yes" rather than "No".) For
reasons I have given question (i) falls to be answered affirmatively. There is
no contest as to (ii). The structured approach commended by Brooke LJ plainly
separates out (iii) and (iv) as distinct successive steps. However Mr Drabble
submits that the judge confused these two steps, and I shall address that
complaint first.
- The judge
noted (paragraph 60) the two sets of comparators put forward: pensioners
resident in the UK and those resident abroad but in countries where the uprate
is paid. He continued:
"61. So far as the
first class of comparators is concerned, persons who live in other countries
have different costs of living from those in Great Britain, and live in
economies that are subject to different rates of inflation. If a comparison
were appropriate, it would be justifiable to compare the cost of living in
sterling terms of a foreign pensioner with that in the UK. A pensioner
resident abroad may be better off, in real terms, than a pensioner living in
Great Britain, because of different local costs of living which are not fully
reflected in exchange rates.
62. While I have
no evidence before me, it is notorious that the cost of living in this country
is relatively high, and certainly higher than that in South Africa, partly as
a result of the equally notorious depreciation of the rand as against, in
particular, sterling. The depreciation of the rand has doubtless led to
inflation in South Africa in terms of the local currency, and the Claimant’s
evidence refers to the facts that inflation and interest rates are higher
there than here. However, the purchasing power of her fixed UK pension is not
fixed: it depends on the rate of inflation in South Africa and changes in the
sterling/rand exchange rate. Importantly, the Claimant does not state that the
purchasing power in South Africa of her fixed sterling pension has declined
because it has not been uprated; and as mentioned above the uprating so far
refused to the Claimant personally is a relatively small sum. Perhaps more
fundamentally, she has not compared the cost of living in South Africa with
that in the UK. Lastly, she obviously cannot provide a prediction as to
whether her cost of living in South Africa will increase in sterling terms.
63. Similar
comments apply to the comparison between the Claimant and those living in
other countries.
64. There are
other differences between the circumstances of those resident here and those
resident abroad, of which the most obvious in the present context are
differences in local social security provision and in local taxation. The
Claimant is unfortunate in that South Africa has limited social security
provision, or at least did so at the time of the Social Security Committee
Report. The position of pensioners in Australia is different: some of them
benefit from Australian social security provision, at significant cost to the
Australian exchequer. Of the (about) 220,000 UK pensioners in Australia,
158,000 qualify for an Australian pension, which is payable to those who have
been resident in Australia for at least 10 years and have reached retirement
age, and have less than a specified income. The position of pensioners in New
Zealand, as described in the 1996 DSS memorandum, is different again: under
the reciprocal agreement between the UK and New Zealand, periods of residence
in the UK are treated as periods of residence in New Zealand. As a result, UK
pensioners living in New Zealand qualify for New Zealand pensions (called
superannuation), less the amount of their UK pensions, by reason of their
residence here or there. Increases in their UK pensions would result in an
equivalent reduction in their New Zealand pensions.
65. It seems to me
that the comparison between the positions of persons living in different
countries, in different social and economic circumstances, and under different
tax and social security regimes, is complex, and cannot simply be restricted
to a comparison of the sterling amounts of their UK pensions."
- And so at
paragraph 67 the judge concluded that Ms Carson's application must fail. Mr
Drabble's argument is that all the factors which led the judge to hold that
the proposed comparators were not in an analogous situation were functions or
consequences of the difference in place of residence between them and Ms
Carson; but place of residence was the "impugned characteristic" for the
purpose of the discrimination complaint, and so, on the authority of Aston
Cantlow v Wallbank [2002] Ch 51, it should have been left out of account
in dealing with question (iii) in Brooke LJ’s structured approach. In Aston
Cantlow the judge at first instance had held that landowners within a
particular category (lay impropriators, occupying former glebe land) who were
required to pay what was said to amount to a particular form of tax which
other landowners were not required to pay were not in an analogous situation
with the others, because all lay impropriators had to pay the tax; hence there
was no discrimination. On appeal this court stated (paragraph 50):
"The treatment
complained of is not that of the defendants personally but that of lay
impropriators generally, the defendants included. It is therefore necessary to
compare the situation of lay impropriators with that of a larger class of
which they form part - a class of persons ‘in an analogous or relevantly
similar situation: Stubbings v United Kingdom (1996) 23 EHRR 213, 238,
para 70. This class has to be identified by reference to shared material
characteristics other than the impugned one. The material characteristic
in the present case is in our view the ownership of land in England at large
or in the parish of Aston Cantlow." (emphasis added)
- We were told
there is an outstanding appeal to the House of Lords in Aston Cantlow.
Whatever the outcome before their Lordships, the reason why this court put
the matter as it did in the sentence italicised is with great respect not far
to seek. The proposition that lay impropriators were not discriminated against
merely because all lay impropriators were treated in the same way may be said
to amount to a refusal to recognise that there might be other
comparators, not lay impropriators, in a materially analogous situation; and
without consideration being given to that possibility, the discrimination
complaint is stillborn. It is as if, in the present case, it were suggested
that Ms Carson’s appropriate comparators were all other UK pensioners resident
in countries where the uprate is not paid, and that would be absurd.
- Mr Howell says
that this court’s reasoning in Aston Cantlow cannot be applied in the
present case. He submits that it cannot be assumed (as was the case in
Aston Cantlow) that there will always be a class, of which the
discrimination complainant is a member, all of whose members will be in a
materially analogous situation to the complainant. Whether the chosen
comparator is in an analogous or similar situation is a question of fact which
the party alleging discrimination must establish on the facts, not by what Mr
Howell referred to as "definitional devices". And for good measure Mr Howell
submits further that in Michalak itself the court did not ignore "the
impugned characteristic", or differences in circumstances said to be
consequences of it. In Michalak it was contended (for the purposes of a
discrimination argument) that Rent Act tenants were in a relevantly similar
situation to local authority secure tenants. The Court of Appeal held that the
two were not in a relevantly similar situation "because of the significant
differences between the two types of tenancy": paragraphs 35 – 39, 55. Mr
Howell further submits that the jurisprudence of the Strasbourg court itself
discloses at least one plain instance where the "impugned characteristic" (in
that case, marriage) itself disqualified a proposed group (unmarried partners)
from qualifying as comparators for the purpose of a case being made under
Article 14: Shackell v UK (2000, Application No 45851/99). It seems to
me that we would generate both conceptual and practical difficulties if a
studied ignorance of the "impugned characteristic" were elevated into a
general principle for the purpose of identifying relevant comparators in an
Article 14 case, and I do not believe that the court in Aston Cantlow
intended any such outcome.
- But there is
more to say as to the approach to be taken in such cases. Wilson J in
Reynolds, without referring to Michalak, made these observations at
paragraph 25 of his judgment:
"The Defendant
does not accept that a person aged 25 or more would have been in a situation
analogous to that of Ms Reynolds during that period. In other words his case
is that the difference in age is reflective of other significant differences.
He also seeks objectively to justify the demarcation at age 25. I use the word
"also" because theoretically the enquiry into whether the situations are
analogous precedes the enquiry into justification. But I find the distinction
elusive. I consider that it suffices for me to focus on the second enquiry and
to ask whether the Defendant establishes objective justification for the
demarcation, as being in pursuit of a legitimate aim to which it is
proportionate."
I have
considerable sympathy with this approach expressed by Wilson J. A factor or
circumstance which puts person X (the comparator) in a different case from
person Y (the putative victim of discrimination) may be said to undermine any
comparison or analogy between X and Y, and so promote a negative answer to
Brooke LJ’s question (iii); but the justification of discrimination – which
only arises for consideration if question (iii) is answered affirmatively –
will also often rest on the very demonstration of a factor or factors
which put X in a different case from Y. There is, therefore, some fragility in
the separation between (iii) and (iv) in Michalak, and it is to be
noted that Brooke LJ himself observed at paragraph 22:
"It is important
to stress that this is only a framework… There is a potential overlap between
the considerations that are relevant when determining, at any rate, the last
two, and possibly the last three questions. There may sometimes, therefore, be
a need for caution about treating the four questions as a series of hurdles,
to be surmounted in turn. In Nasser v United Bank of Kuwait [2001] EWCA
Civ 556 at [56], [2002] 1 AER 401 Mance LJ observed, in effect, that questions
(iii) and (iv) above tend to merge into [one] another."
However, it may be
said that this leaves the true relation between questions (iii) and (iv)
unresolved. A possible approach, as it seems to me, is to ask a compendious
question in place of (iii): 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?
This provides a relation between questions (iii) and (iv) and avoids any tight
adherence to a rule requiring the "impugned characteristic" to be ignored.
- If one
approaches this part of the case by asking this compendious question, it seems
to me quite impossible to conclude that the factors addressed by Stanley
Burnton J in paragraphs 61 – 65 of his judgment ought somehow to be ignored.
They are inevitably part of the picture against which a judgment must be made
as to whether such difference in treatment as is relied on stands in need of a
distinct justification. I should add (though perhaps it is self-evident) that
in my view there is no place, in the course of asking and answering this
compendious question, for the operation of any judicial deference to the
legislative or executive branches of government. Though the question is
obviously not limited to the ascertainment of facts, but involves an
evaluation, the evaluation does no more than rule out or in the
requirement of justification; that is to say, it is a test for the application
of Article 14, not a judgment whether the Article is violated. No amount of
judicial deference, even in the sphere of macro-economic policy, could rightly
persuade the court to forsake its duty to decide whether or not the Article
applies. The scope for such deference, so far as any is due, is at the point
of decision whether or not the Article is breached.
- In my
judgment, the circumstances of Ms Carson and her chosen comparators are not so
similar as to call (in the mind of a rational and fair-minded person) for a
positive justification for the withholding of the pension uprate in the cases
where it is withheld. I arrive at this conclusion in light of all the factors
discussed by Stanley Burnton J at paragraphs 61 – 65. And if the right
question is not the compendious one which I have ventured to suggest, but
(more conventionally) whether the comparators put forward by Mr Drabble are in
an analogous position to that of Ms Carson, I consider that Stanley Burnton J
gave the right answer.
- It seems to me
important to have in mind (and this well illustrates the link or overlap
between the issue of true comparators and the issue of justification) that the
Secretary of State’s obligation under s.150 of the Act of 1992, as I have
already explained (paragraph 12), is to review inter alia the sum
specified in s.44(4) for the weekly rate of the basic pension "in order to
determine whether [it has] retained [its] value in relation to the general
level of prices obtaining in Great Britain", and to lay an up-rating order
before Parliament where it appears to him that the general level of prices is
greater at the end of the review than it was at the beginning of the period.
The draft order must increase the sum specified in s.44(4) by a percentage
which is no less than that increase. Thus the scheme of the primary
legislation is entirely geared to the impact on the pension of price inflation
in the UK. There is simply no inherent probability that price inflation in
other countries where expatriate UK pensioners might have made their home (or,
for that matter, any other economic factors) will have a comparable effect on
the value of the pension to such pensioners. They may do better, they may do
worse. There will also, of course, be the impact of variable exchange rates.
There will be, if I may be forgiven a jejune metaphor, swings and roundabouts.
While I certainly do not suggest there are no principled arguments in favour
of the annual uprate being paid to those in Ms Carson’s position, it seems to
me inescapable that its being awarded across the board to all such pensioners
would have random effects. A refusal by government to put in place a measure
which would produce such effects (which in the end is all that has happened
here) cannot be said to stand in need of justification by reason if its being
compared with the clear and certain effects of the uprate for UK-resident
pensioners.
CARSON: IS THERE
AN OBJECTIVE AND REASONABLE JUSTIFICATION FOR THE DISCRIMINATION RELIED ON?
- Like the judge
below, I turn to this question lest I am wrong on the issue of comparators,
whether as conventionally formulated or as I prefer to formulate it. Mr
Drabble submitted that this part of the case fell inevitably to be determined
against the Secretary of State, and no question of judicial deference could
arise to qualify the matter, because in truth no justification was offered; it
was accepted by government (see the Minister’s statement, cited at paragraph
54) that the present situation is "illogical". But this argument involves a
non sequitur: even though the overall effect of the successive bilateral
agreements on the distribution of the uprate to foreign resident pensioners is
not or may not be intrinsically supportable, it by no means follows
that the government’s refusal to date to ameliorate the position in favour of
those in like case to Ms Carson is necessarily unjustifiable. Put another way,
Mr Drabble’s argument confuses the undoubted truth that the bilateral
agreements have over time created a haphazard state of affairs with the
proposition, far from undoubted, that against that background a failure to
award uprate to those in Ms Carson’s position necessarily constitutes a
violation of Article 14.
- The judge
below held (paragraph 76 of his judgment) that "…the remedy of the expatriate
United Kingdom pensioners who do not receive uprated pensions is political,
not judicial. The decision to pay them uprated pensions must be made by
Parliament." Part of his reasoning towards this conclusion (paragraph 70)
consisted in the proposition that, by virtue of the impact of the bilateral
agreements, the case touched the government’s conduct of relations with
foreign States, and this was generally a non-justiciable area: "[t]he Court
will not embark on questions whether it is or is not in the public interest
for such agreements to be entered into". But the question for decision in this
case does not in truth engage the government’s conduct of foreign relations at
all. As I understand it, it would be open to the government to uprate all or
any pensions payable abroad irrespective of the bilateral agreements, because
although in some instances the agreements require payment of uprate, in
no case do they forbid it. The judicial taboo of foreign relations is a
red herring. In fairness Stanley Burnton J went at any rate some distance to
address the merits of the justification argument: see paragraphs 72 ff.
- I would also
reject Mr Howell’s argument – and this is linked to the point on foreign
relations – to the effect that because States possess (as they surely do) the
right under international law to conclude bilateral treaties in relation to
social security, the fact that, as a result, individuals obtain more
favourable treatment in some cases than in others does not give rise to an
issue under Article 14. The conferment or withholding of the uprate is purely
a matter for the Secretary of State’s exercise of statutory powers conferred
by domestic law in the ordinary way. For this reason Mr Howell is not in my
judgment assisted by the Strasbourg decision in Moustaquim 13 EHRR 801,
which he cited in this context. I will not burden this already lengthy
judgment by travelling into its details.
- I turn then
myself to the merits. I should first make it clear that there is no question
of any legitimate expectation, enjoyed by Ms Carson, that she would receive
the uprate in South Africa. It is entirely plain that the literature
distributed by the then Department of Social Security (and sent to her) was
perfectly explicit as to the position of UK pensioners who chose to live in
South Africa.
- I would accept
this submission made by Mr Howell at paragraph 39 of his skeleton:
"There is no
reason why a decision that resources can be found to uprate the pensions
payable to those in Great Britain to maintain their value given inflation in
the general level of prices obtaining in Great Britain should require the
pensions payable to those not ordinarily resident in and absent from the
United Kingdom to be increased by the same amount."
The submission is,
however, another demonstration of the overlap between the issues of
comparators (or analogous situation) and justification. The true justification
of the government’s refusal to pay the uprate to Ms Carson and those in like
case is that they have chosen to live in societies, more pointedly economies,
outside the UK where the specific rationale for the uplift may by no means
necessarily apply: see paragraph 64 above.
- There is no
escape from the fact, implicitly demonstrated by materials which I have
already cited, that a major factor in the decision of government, indeed as I
understand it successive governments, not to extend the uprate to those in Ms
Carson’s position has been the daunting cost of doing so. Mr Drabble roundly
submitted that cost could not constitute a legitimate justification. For
reasons just given I consider that this decision or decisions are objectively
justified without regard to cost. But Mr Drabble’s submission is of some
importance, not least for its reliance on the judgment of Schiemann J as he
then was in Schaffter [1987] IRLR 53. Ms Schaffter, a single parent who
had not been married, complained (relying on the EEC Equal Treatment
Directive) that a statutory scheme for the payment of hardship grants to
single parents who were studying was discriminatory in its application because
the grant was only payable to students who had been married but had lost their
spouse, and was not available to lone parent students who had not been
married. One of the justifications put forward (though not relied on by
counsel at the hearing) was the cost of any extension of the scheme. Schiemann
J said (paragraph 33):
"Given a constant
pool of available money the question is whether it should be distributed in a
discriminatory or a non-discriminatory manner. I have found the existing
manner to be, prima facie, discriminatory. The constant pool of money
could undoubtedly be distributed differently although this would, as a matter
of arithmetic, inevitably mean that those who presently qualify would have
(notionally) to suffer a reduction in order to leave some over for those who
do not presently qualify."
- I would
repudiate altogether the suggestion that this reasoning (whose force in its
context I respectfully acknowledge) can have the least application in this
present case. If by this court’s decision the law required the Secretary of
State to uprate the pensions of Ms Carson and others he could not, out of
the same "pool of money", fulfil his duty under s.150 of the 1992 Act to
lay an order providing for a percentage uprate for UK resident pensioners
which would compensate them for UK price inflation. New money would have to be
found. S.150, whose effect I have described above at paragraph 12, is in
mandatory terms. Even if it were not, faced with a duty imposed by the courts
to uprate Ms Carson’s pension the Secretary of State would in my judgment at
least be obliged, by the ordinary requirements of public law, to consider
whether he should find new money so as to maintain the uprate for UK
resident pensioners.
- In my judgment
the implications of an extended uprate for the public finances are in the
context of this case a legitimate factor going in justification of the
Secretary of State’s position. The inevitable effect of Mr Drabble’s argument
is that the court would order the Secretary of State to deploy public funds in
a way which would require the executive to decide, in turn, how public funds
should or should not be deployed or distributed in other areas which are not
before the court to consider. I recognise, of course, that once an issue of
justification under Article 14 arises – the fourth question in Michalak
– the public authority which carries the burden of demonstrating that its act
is justified is faced with a weighty and substantial task, and "it is simply
not enough to claim that what has been done falls within the permissible ambit
of Parliament’s discretion" (Mendoza [2002] EWCA Civ 1533, per Buxton
LJ at paragraph 18). But I am quite unable to accept that the courts’ duty
under the Human Rights Act 1998 to protect and vindicate the Convention
rights, or the jurisprudence of the European Court of Human Rights itself,
mandates so stark a judicialisation of the political function as is implied by
Mr Drabble’s argument. If the judges are to confine and circumscribe the
elected government’s economic policies to the tune suggested here, it could
only be upon a legal imperative far more pressing than anything we have
listened to in this case.
- I have already
referred (paragraph 62) to the idea of judicial deference, a term which has
found its way into the argot of the cases on Convention rights. But its
utility as a measure of the relation between the courts and the other branches
of government may perhaps be doubted, not least given the observations of Lord
Hoffmann in Prolife [2003] UKHL 23 at paragraph 75:
"My Lords,
although the word ‘deference’ is now very popular in describing the
relationship between the judicial and the other branches of government, I do
not think that its overtones of servility, or perhaps gracious concession, are
appropriate to describe what is happening. In a society based upon the rule of
law and the separation of powers, it is necessary to decide which branch of
government has in any particular instance the decision-making power and what
the legal limits of that power are. That is a question of law and must
therefore be decided by the courts."
I hope it is
consistent with this exposition to say that the powers of the courts and the
powers of the other branches of government, if they do not overlap, at least
may operate in the same field; they are not marked off by walls without
windows; they are in constellation with each other, so that what government
may settle as policy may be qualified by the constraint of law, settled by the
judges. The teaching which Lord Hoffmann’s observation provides, if I may say
so, is that in any particular area the decision-making power of this or that
branch of government may be greater or smaller, and where the power is
possessed by the legislature or executive, the role of the courts to constrain
its exercise may correspondingly be smaller or greater. In the field of what
may be called macro-economic policy, certainly including the distribution of
public funds upon retirement pensions, the decision-making power of the
elected arms of government is all but at its greatest, and the constraining
role of the courts, absent a florid violation by government of established
legal principles, is correspondingly modest. I conceive this approach to be
wholly in line with our responsibilities under the Human Rights Act 1998. In
general terms I think it reflects a recurrent theme of the Strasbourg
jurisprudence, the search for a fair balance between the demands of the
general interest of the community and the protection of individual rights:
Sporrong & Lonnroth (1982) 5 EHRR 35. More particularly, it chimes with
what the court said at paragraph 46 in James v UK (1986) 8 EHRR 123, in
which a challenge brought on behalf of the Duke of Westminster to certain
aspects of the leasehold enfranchisement legislation was rejected:
"… the decision to
enact laws expropriating property will commonly involve consideration of
political, economic and social issues on which opinions within a democratic
society may reasonably differ widely. The Court, finding it natural that the
margin of appreciation available to the legislature in implementing social and
economic policies should be a wide one, will respect the legislature’s
judgment as to what is ‘in the public interest’ unless that judgment be
manifestly without reasonable foundation."
Lastly in this
context it is helpful to recall this well-known passage in the speech of Lord
Hope of Craighead in R v DPP, ex p. Kebilene [2000] 2 AC 326 at 381B-D:
"In some
circumstances it will be appropriate for the courts to recognise that there is
an area of judgment within which the judiciary will defer, on democratic
grounds, to the considered opinion of the elected body or person whose act or
decision is said to be incompatible with the Convention … [T]he area in which
these choices may arise is conveniently and appropriately described as the
"discretionary area of judgment". It will be easier for such an area of
judgment to be recognised where the Convention itself requires a balance to be
struck, much less so where the right is stated in terms which are unqualified.
It will be easier for it to be recognised where the issues involve questions
of social or economic policy, much less so where the rights are of high
constitutional importance or are of a kind where the courts are especially
well placed to assess the need for protection."
- Addressing the
case in the light of all these matters, I conclude that there is no
consideration which remotely constitutes so powerful a legal imperative as to
deny the justifications I have discussed for the government’s refusal to
uprate the pensions of Ms Carson and those in like case. As I read the cases,
this conclusion is entirely in line with a consistent series of decisions in
Strasbourg. I have already said (paragraph 19) that the Commission in JW
and EW rejected the applicants’ complaint of violation of Article 14 read
with Article 1P. I will at this stage do no more than set out a passage from
Corner (Application No 11271/84), which I have already cited (paragraph
20). In that case the Commission rejected as manifestly ill-founded an
argument that the failure to pay uprate amounted to a breach of Article 14
read with Article 1P:
"… the Commission
has held that the ‘freezing’ of a pension at a particular level when a person
leaves the United Kingdom does not amount to a deprivation of possessions
infringing Article 1 of the Protocol. (Dec. No. 9776/82, 10.83 to be published
in D.R. 34). Moreover, the different treatment of persons entitled to pensions
who remain in the country of payment compared with those who emigrate is
justified on the grounds that the applicant will only lose the benefit of
future increases in the pension, whose purpose broadly speaking is to
compensate for rises in the cost of living in the United Kingdom and which the
applicant will not have to endure (Dec. No. 9776/82, loc. cit.). The
Commission also considers that the economic state of third countries is not a
matter which domestic pension authorities should be obliged to consider."
REYNOLDS: IS THERE
AN OBJECTIVE AND REASONABLE JUSTIFICATION FOR THE DISCRIMINATION RELIED ON?
- Although Mr
Gill has referred to and relied upon a considerable body of evidence, I can
without injustice to his client deal with this question rather more shortly,
having already set out the substance of the relevant learning. By way of
preliminary I should say that although in his skeleton argument Mr Howell for
the Secretary of State did not accept that recipients of benefit under age 25
were in an analogous position to those of 25 and over for the purposes of
Article 14, it seems to me to be plain that the real issue here is
justification. In this appeal I would answer my compendious question – are the
circumstances of X (over 25) and Y (under 25) 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? – in the affirmative,
in contrast to my answer in Carson. The selection, for the purpose of
settling differential levels of payment of State benefit, of any particular
break-point in terms of age is in a sense (and not a pejorative sense) bound
to be arbitrary, if only because there will be claimants either side of the
line whose circumstances do not perceptibly differ. However the depth of the
justification required, the reach of the court’s scrutiny of what is advanced
by way of justification, is quite another matter.
- It should be
recalled that the justification question only arises in relation to the
payment of jobseeker’s allowance to Ms Reynolds and not income support, if my
Lords concur with my conclusion at paragraph 49 as to the scope of
"possessions" for the purposes of Article 1P. However it is necessary to say a
little about the history of income support, because the payment of a higher
amount at age 25 was first introduced in relation to that benefit, and then
applied to jobseeker’s allowance, which came later.
- Income support
replaced supplementary benefit, following proposals contained in a Green Paper
entitled "Reform of Social Security" (Cmnd. 9517-9) published in June 1985. It
contained these passages:
"2.72 There will
be a standard personal allowance for all claimants, varied only by age and
marital status. That will end the present householder/non-householder
distinction and the structural distinction between ordinary and long-term
rates. [These were features of the supplementary benefit scheme.] These will
be replaced by age-related rates.
2.73 There is no
one age dividing line relevant to all claimants. But it is clear that at the
age of 18 the majority of claimants are not fully independent and that the
great majority of claimants above age 25 are. This is already in practice
reflected in the present scheme. In 1983 nearly 90 per cent of all claimants
over 25 were getting the higher householder rate. By contrast the clear
majority of claimants under 25 were living in someone else’s household. This
is particularly marked for single claimants, the great majority of whom aged
between 18 and 24 presently get a lower rate of help. The Government have
concluded that an appropriate dividing line is age 25. There will therefore be
different rates for adult claimants above and below age 25, although, as
explained below, account will be taken of claimants’ family responsibilities."
The break-point at
age 25 was almost immediately the subject of criticism, and indeed in its
fourth report the government’s own Social Security Advisory Committee stated
at 3.10:
"If an age split
is thought preferable for administrative reasons, then 25 is certainly too
high."
The government
accepted that all couples aged 18 and over should receive the same rate, but
declined to change its position as regards single claimants. A White Paper was
published in December 1985 in which it was stated:
"3.13 All
age-dividing lines are of course open to argument at the margin. Nonetheless,
the fact is that the great majority of single claimants without children under
25 now live in other people’s households and they already receive a lower rate
of help. Overall, four-fifths of single claimants without children in the 18
to 24 age group get the non-householder rate. It is also reasonable to
recognise that earnings levels are generally lower for this group than for
those in older age groups. The abolition of the householder distinction and
the introduction of the 25 age point have enabled the Government to
concentrate more resources on older people - including pensioners and disabled
persons living in other people’s households."
- Jobseeker’s
allowance was heralded by a White Paper published in October 1994 (Cm 2687).
There was no mention of age-related bands in the White Paper but when in due
course the relevant legislation was presented to Parliament, it became clear
that the government intended to import into the structure of both types of
jobseeker’s allowance the same break-point for differential payments as
applied to income support.
- In a statement
of 5th September 2001 made in these proceedings Mr Taylor, section
head of the Working Age Financial Support Change Branch of the Department of
Work and Pensions, has set out the Secretary of State’s explanation for the
change of payment rates at age 25 (paragraph 17):
"(1) People in the
18 – 24 age-group in general earn less than those 25 or over, and may
legitimately be regarded as having lower earnings expectations.
(2) The majority
of those 18 – 24 do not live independently and may legitimately be regarded as
having lower living costs than the group of claimants aged 25 or over.
(3) The payment of
lower rates of JSA and IS to those between 18 – 24 may be expected to have the
effect of discouraging them from living independently, and encouraging them to
live together with others, notably parents or other family members, which may
be seen to have wider social benefits.
8(4) Other aspects
of the social security system serve to prevent any resultant hardship to the
minority of persons in the position which was that of the Claimant who are
aged between 18 – 24 and do not live independently.
(5) It is
important from the point of view of good administration for the social
security system to be based upon clear, easily applicable rules, rather than
attempting to cater for the individual situation of every claimant."
- Mr Gill has
sought to mount a comprehensive attack upon every one of these propositions,
largely through the medium of evidence from Professor Smith, Emeritus
Professor of Statistics at the University of Southampton. Professor Smith sets
out the five propositions, asserts that they involve "two key concepts: (i)
earnings expectations, and (ii) living independently", and then produces a
wealth of statistical detail to assault, in particular, the attachment of any
special significance to age 25 as a break-point in terms of either of his "key
concepts".
- In my judgment
Professor Smith’s arguments and materials do not demonstrate that the
selection of age 25 as the break-point for an increase in the level of benefit
was not an available option to a reasonable Secretary of State. Their highly
specific focus might lead the theorist to this or that conclusion, but is
quite inapt to compel any particular view of what the broad policy should be.
It is obvious (and of itself, uncontentious) that at least within limits
different reasonable views might be taken as to the age at which (if any) the
payable benefit should increase. No less obviously, what may be called the
demographic facts – levels of earnings related to age, living alone or with
parents or others – differ from place to place and time to time. And it seems
to me in particular that Mr Taylor’s third proposition (which I assume to be
of no little importance as an engine of the policy) is not really capable of
being demonstrated or disproved by statistical material.
- Beyond these
brief observations I would decline altogether to enter into the minutiae of
the points put forward by Mr Gill to support his case that the age break-point
at 25 for the purposes of the levels of payment of jobseeker’s allowance is
unjustified. That is not out of any disrespect for the quality of his
evidence. It is because the exercise would, in my judgment, be fundamentally
misconceived. At paragraph 28 of his judgment Wilson J observed:
"… I regard it as
unnecessary, indeed inappropriate, for me to address the arguments presented
by the Defendant by way of justification for the demarcation with the degree
of detail into which, drawing upon a statement of an eminent statistician as
well as a host of other material, Mr Gill would have me descend. Indeed, as
his enthusiastic argument proceeded, I increasingly sensed the incongruity
that such a debate was proceeding in court instead of in Parliament."
I entirely agree.
I have already referred (paragraph 73) to James v UK and to Kebilene.
The reasoning in the passages there cited seems to me if anything to apply
with greater force here than in the Carson appeal. The consequence of
Mr Gill’s argument would be to require the Secretary of State to re-order the
social security budget in a way whose effects, both for claimants and for the
public purse, would be quite beyond the purview of this court to predict or
control, and in any event the court has no business controlling them. The case
is even farther distant from Schiemann J’s "constant pool of available money"
than is Carson.
- I have
referred also (paragraph 72) to the judicialisation of the political function.
As I see this case, Mr Gill has for all the world invited this court to make
government policy under the pretence – for that is what I think it is – of the
vindication of Convention rights. The decision of the question, in Lord
Hoffmann’s language, which branch of government has in any particular instance
the decision-making power and what the legal limits of that power are, may
sometimes call up a profound constitutional challenge which the courts must be
alert to confront. But not in this case. Mr Gill’s argument allots a false
role to the judge and I for one would repudiate it altogether.
- In my view the
Secretary of State has demonstrated a perfectly reasonable justification for
the differential payments of jobseeker’s allowance.
- I would
dismiss both appeals.
Lord Justice Rix:
- I agree.
Lord Justice Simon
Brown :
- I also agree.