Carson & Anor v Secretary of State for Work and Pensions

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…”

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.

The appeal is from the decision of Wilson J given in the Administrative Court on 7^th 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 1^st July 2002.

Ms Reynolds was born on 9^th November 1976. She has a son who was born on 9^th June 2001. After leaving school she was in paid employment until she was made redundant on 12^th October 2000, and during that period national insurance contributions were paid by her employers on her behalf and by herself. On 24^th October 2000 she applied for jobseeker’s allowance, and was notified by letter of 14^th 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 12^th 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 9^th June 2001) she received income support rather than jobseeker’s allowance, but at the same rate. Between 24^th October 2000 and 9^th 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.

The appeal is from the judgment of Stanley Burnton J given in the Administrative Court on 22^nd 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 -

(a)

he is over pensionable age; and

(b)

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.

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.

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.

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.

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.

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.

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.

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 20^th 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.

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 13^th 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 13^th 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.

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.”

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 5^th 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.

I agree.

I also agree.