Hooper & Ors, R (on the application of) v Secretary of State for Work and Pensions

There are before the Court two conjoined appeals involving five individual appellants. Each is a widower. The wife of each died at a time when a statutory regime prevailed under which widows received benefits or tax allowances in circumstances in which widowers did not. This regime reflected a bygone era in which the husband was the breadwinner of the family and the wife did not usually go out to work. That regime has changed, and the State now recognises that to provide such benefits to widows alone would constitute discrimination based on gender which would infringe Article 14, together with Article 8, or, in the case of tax allowances, Article 1 of the First Protocol, of the European Convention on Human Rights (“the Convention”). On 2 October 2000, the Convention was incorporated into English law by, and subject to the provisions of, the Human Rights Act 1998 (“the HRA”).

The appellants claim that they should have received the same benefits that were available to widows under the old regime. They contend that they are the victims of discrimination which violates the Convention. In advancing their claims they rely upon the provisions of the HRA. They do not, however, all do so in the same manner. Some of the issues that their claims raise are novel and far-reaching. These cases have been treated as test cases and many other cases will turn on the result of these appeals.

Four of the appellants, Messrs Hooper, Withey, Martin and Naylor, complain of discrimination in the matter of widow’s benefits paid pursuant to sections 36-38 of the Social Security Contributions and Benefits Act 1992 (the “1992 Act”), and the fifth, Mr Wilkinson, complains of discrimination in the matter of the widow’s bereavement allowance granted under section 262(1) of the Income and Corporation Taxes Act 1988 (“ICTA 1988”). The respondent in the case of the 1992 Act is the Secretary of State for Work and Pensions, and the respondents in the case of ICTA 1988 are the Inland Revenue Commissioners.

Although similar issues arise in both appeals, we propose to deal with the appeals one at a time.

We propose at this point to summarise the relevant statutory provisions that relate to benefits, which we set out in full as an Annex.

Section 36 of the 1992 Act provided for a Widow’s Payment, a lump sum payment of £1,000, subject to conditions which included restriction to widows under pensionable age whose late husbands had made national insurance contributions. Section 37 provided for a Widowed Mother’s Allowance (“WMA”) payable weekly, subject to similar conditions, to widows with dependent children. Section 38 provided for a Widow’s Pension, payable weekly, subject to similar conditions, to widows not entitled to WMA over 45 and under 65 at the date of their husband’s death or at the date when they ceased to be entitled to WMA. Under applicable regulations (The Social Security (Claims and Payments) Regulations 1987, SI 1987 No 1968) such benefits had to be applied for “in writing on a form approved by the Secretary of State…or in such other manner, being in writing, as the Secretary of State…may accept as sufficient in the circumstances of any particular case” (regulation 4(1)); and within three months “beginning with any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned” (regulation 19(2)). There were special forms for making claim to widow’s benefits, which not surprisingly were drafted in terms which would not be appropriate for a claim by a widower. The effect of the three month time limitation was (i) that if the Widow’s Payment was not claimed in time, it was wholly lost, and (ii) that arrears of WMA and the Widow’s Pension could not be recovered for more than three months prior to the date on which a valid claim for these was made.

On 9 April 2001 the Welfare Reform and Pensions Act 1999 (the “1999 Act”) came fully into force, amending the 1992 Act. Its provisions introduced a system of survivor’s benefits payable to both men and women, but at the price that these were more limited forms of benefit, targeted most on those in need. For those already in receipt of widow’s benefits under the 1992 Act, however, the 1999 Act preserved the distinction between widows and widowers, for existing rights were preserved. Section 54 substituted a new section 36 into the 1992 Act and replaced Widow’s Payment with a new Bereavement Payment, set at £2000 (thus recognising an increase in expenses arising directly from bereavement) and payable to widows and widowers alike, whose spouses had died after 9 April 2001. Section 55 introduced a number of new sections into the 1992 Act: a new section 39A replaced WMA with a new Widowed Parent’s Allowance (“WPA”) for widows or widowers with dependent children; and a new section 39B replaced Widow’s Pension with a Bereavement Allowance payable for only 52 weeks to those over 45 but under pensionable age. Existing rights to WMA and Widow’s Pension were preserved by a new section 36A, and by section 36A(2) the new WPA was extended after 9 April 2001 to widowers whose wives had died before 9 April 2001 and who had dependent children as at 9 April 2001.

Article 8 of the Convention provides that –

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Article 14 provides:

“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 41 provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

Section 3 provides:

“3 (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)

This section –

(a)

applies to primary legislation and subordinate legislation whenever enacted;

(b)

does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)

does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”

Section 6, subsections (1) and (2) provide:

“(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)

Subsection (1) does not apply to an act if –

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions”

Section 7 provides:

“(1)

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)

rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

….

(7)

For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”

Section 8 provides:

“(1)

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2)

But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3)

No award of damages is to be made unless, taking account of all the circumstances of the case, including –

(a)

any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b)

the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4)

In determining –

(a)

whether to award damages, or

(b)

the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

….

(6)

In this section –

“court” includes a tribunal;

“damages” means damages for an unlawful act of a public authority; and

“unlawful” means unlawful under section 6(1).”

Messrs Hooper, Withey and Martin’s claims are founded on the fact that, had they been women, they would have received Widow’s Payment and WMA upon the deaths of their spouses. Mr Naylor’s claim is founded on the fact that, had he been a woman, he would have received Widow’s Payment and Widow’s Pension on the death of his spouse. Each appellant contends that he was the victim of discrimination which violated Article 14, when read with Article 8, of the Convention.

Before Moses J, Messrs Withey, Martin and Naylor argued that, although, if given their natural meaning, the relevant statutory provisions appeared to discriminate against men, it was possible to interpret them in such a way as to confer on widowers as well as widows the right to receive the benefits in issue. They contended that section 3 of the HRA required the provisions in question to be so interpreted, with the result that they were entitled to receive the benefits in question under the statute. Mr Hooper did not adopt this argument and Moses J did not accept it. It has not been actively pursued before us, but it has been ‘kept open’ for us to decide, as it is a point that has been taken in a number of other cases. We shall deal with this as the first issue.

On the assumption that they do not succeed on the first issue, the three appellants who have espoused it join with Hooper in contending that the effect of the legislation is to discriminate against them contrary to Article 14, when read with Article 8, of the Convention. In relation to some, an issue arises as to whether, or when, they became ‘victims’ of the alleged discrimination so as to be in a position to rely upon a breach of the Convention. We shall deal with this as the second issue.

The Secretary of State has now accepted that, in the period with which the claims are concerned, the statutory provisions which entitled women, but not men, to Widow’s Payment and WMA constituted discrimination which violated Article 14, when read with Article 8. The Secretary of State has accepted the reasoning of Moses J on this point, and we consider that he was right to do so subject to the Walden Point discussed below. Nor has the Secretary of State sought to contend that there was any objective justification for this discrimination. The same is not true of the entitlement of women, but not men, to a Widow’s Pension. The Secretary of State contends that there was objective justification for this up to the moment that the law was changed. Whether this contention is well founded constitutes the third issue that we shall address.

The Secretary of State accepts that, by November 1999, when the 1999 Act was enacted, wrongful discrimination in relation to Widow’s Payment, WMA and, if he loses on the third issue, Widow’s Pension had been identified. The Secretary of State contends, however, that Strasbourg jurisprudence demonstrates that the State was entitled to a reasonable period within which to rectify the law, during which period no individual could found a claim on wrongful discrimination. This contention is founded on decisions of the Strasbourg Court which include that of 16 March 2000 in Walden v Liechtenstein (unreported), and has been described as the Walden point. We shall deal with this point as the fourth issue.

Thus far, the claims that we have been describing have founded on discrimination between women and men. We now turn to an allegation of wrongful discrimination that has a different basis. A number of claims have been brought in Strasbourg by claimants founding on the same breaches of the Convention as are relied upon in the four appeals before us. Amicable settlements have been reached in the case of some of these, and, in the case of benefit claimants, it was at all material times the policy of the Secretary of State to settle claims declared to be admissible at Strasbourg. The appellants contend that discrimination between those widowers who have brought proceedings at Strasbourg, who have had their claims settled, and the appellants themselves, whose claims under the HRA are being resisted in these proceedings, constitutes an independent violation of Article 14, when read with Article 8, or with Article 1 of the first Protocol to the Convention. We shall deal with the validity of this contention as the fifth issue.

By way of alternative to the fifth issue, all four appellants contend that discrimination between those who bring claims at Strasbourg and those who have not yet done so violates principles of our domestic public law. Whether this contention is well founded will constitute the sixth issue that we shall consider.

The four appellants join in pursuing what is the most important issue raised by this appeal. They contend that the discrimination which has occurred could and should have been avoided. It was and is open to the Secretary of State to make extra-statutory payments to the claimants thereby putting them on an equal footing both with widows and with widowers whose claims have been settled at Strasbourg. Such action would have prevented the discrimination which was bound otherwise to occur as a result of making the payments to which widows were statutorily entitled under the 1992 Act and as a result of settling claims brought at Strasbourg. Section 6(1) of the HRA made it unlawful for the Secretary of State to decline to make such payments. The court should make a mandatory order that such payments be made.

Moses J held that this basis for claiming payments was unsound. Section 6(1) had no application because the case fell within the provisions of Section 6(2)(b). He went on to make a declaration of incompatibility in relation to Sections 36 and 37 of the 1992 Act. Whether the four appellants’ claims to extra-statutory payments were unsound is the seventh issue that we shall address.

Questions arise as to whether any appellant can complain of the effects of discrimination insofar as these impacted prior to 2 October 2000. These we shall consider as the eighth issue.

Finally, an issue arises as to whether it is necessary to make payments of compensation to the appellants in order to afford them ‘just satisfaction’. This is the ninth issue.

We agree with Moses J that the principles to be applied when considering the effect of section 3 of the HRA are encapsulated in the following statements. In R v A. (No.2) [2001] 2 WLR 1546 at 1563 Lord Steyn said:

“In accordance with the will of Parliament as reflected in Section 3, it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in the statute, but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.”

However, in R v Lambert [2001] 3 WLR 206, decided about 1½ months after R v A (No.2), at paragraph 79, Lord Hope observed that section 3(1) preserves the sovereignty of Parliament:

“It does not give power to the judges to overrule decisions, which the language of the statute shows have been taken on the very point at issue by the legislature.”

Later he observed at paragraph 81:

“But the interpretation of the statute by reading words in to give effect to the presumed intention must always be distinguished carefully from amendment. Amendment is a legislative act. It is an exercise which must be reserved to Parliament.”

Section 6 of the Interpretation Act 1976 provides:

“In any Act, unless the contrary intention appears, -

words importing the masculine gender include the feminine; words importing the feminine gender include the masculine.”

In our judgment ‘the contrary intention’ appears emphatically from the provisions of sections 36 to 38 of the 1992 Act. As Moses J observed, the sections draw a distinction between men and women and husbands and wives. This distinction is particularly marked in section 37, which includes, in the conditions entitling a woman to WMA, pregnancy by her late husband and artificial insemination with the semen of some person other than her husband. It is quite impossible to read references to the feminine gender in these sections as including the masculine. Moses J so held, and we agree with him.

Section 7(1) of the HRA, which we have set out above, provides that only a ‘victim’ can make a claim under section 6(1). Under section 7(7) the test of a ‘victim’ is that applied by the Strasbourg Court. In the present context identification of the test is assisted by the fact that the Strasbourg Court has made a number of decisions on admissibility of claims which are close to carbon copies of those before us. Those decisions have greatly reduced the area of controversy between the parties. While they identify the relevant principles they have not, however, applied these in a manner which we find satisfactory.

We have drawn attention to the regulations which require a widow to make her claim within three months of becoming entitled to a payment. Because a widow who has not made a claim has no entitlement to benefits, the Strasbourg Court does not consider that a widower who has made no claim is in a position to complain of discrimination. Only when he has made a claim is he in a position to complain that he is not being treated in the same way as a woman.

This approach was first manifested in Cornwell v. United Kingdom (2000) 27 EHRR CD62. Mr Cornwell’s wife had died on 24 October 1989, leaving a dependent child. On 7 February 1997 his representative had “contacted” the Benefits Agency to enquire about widow’s benefits. On 14 February 1997 the Agency “answered” to say that legislation provided only for widows and not widowers. On 28 March 1997 the Agency confirmed that if Mrs Cornwell’s record had been that of a man, her survivor would have been entitled to Widow’s Payment and WMA. The position of the Government was set out in the decision as follows:

“The Government contest the admissibility of the application insofar as it relates to the period 24 October 1989 to 7 February 1996. They point out that the applicant did not attempt to claim widows’ benefits until 7 February 1997 and that it was only from this date onwards that the legislation was applied to him. Had a woman claimed widows’ benefits on 7 February 1997 in respect of the death of her husband in October 1989, she would have been told that she was out of time for claiming a widow’s payment and that she could only claim widowed mothers’ allowance with effect from 8 February 1996.”

This reflects the fact that, at the relevant time, a claim had to be made within 12 months of the benefit becoming payable.

The Court went on to deal with the Government’s objection in the following passage:

“The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, the Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p.1288, §§56-59 and the Valmont v. the United Kingdom decision of 23 March 1999, unpublished). In the present case, during the period between his wife’s death on 24 October 1989 and his claim for benefits on 7 February 1997, the applicant cannot be said to have been directly affected by the discrimination of which he complains, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefits under domestic law.

It follows that for the period 24 October 1989 to 7 February 1997 the applicant cannot claim to have been a victim of a violation of his rights under the Convention and First Protocol, and that the application, insofar as it relates to this period, is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§3 and 4 of the Convention.”

The Court then recited, incorrectly, that the Government did not contest the admissibility of the application insofar as it related to the period after 7 February 1997 and declared the application inadmissible up to that date, but admissible thereafter.

It is clear that the application should have been declared admissible in respect of the period beginning on 7 February 1996. The important point to note, however, is that the Court required ‘an attempt to claim’ benefit as a precondition to becoming a victim. No point was taken in that case as to the manner of the attempt to claim benefit, but evidence was placed before us which satisfied us that the attempt had been made in writing.

In White v United Kingdom (application no 5134/99 – judgment 7 June 2001) the UK Government took the far from attractive point that the claimant, who had advanced a claim in writing for benefit, had not done so on the official form, notwithstanding that this was designed specifically for widows. The Court gave this short shrift:

“The Court notes that in the present case the applicant made clear in the form notifying the social security office of the death of his wife that he wished to claim “widowers’ benefits”. The Court further notes that on two occasions a Minister of the Department of Social Security wrote to the applicant’s Member of Parliament confirming that, as a man, the applicant was not entitled under the current law to claim widows’ benefits.

The Government contend that the applicant never made a claim for any benefits “in the proper form” and that, applying the Court’s reasoning in the Cornwell case, the applicant cannot claim to be a victim of discrimination in violation of the Convention. The Court is unable to accept this argument. As appears from the Cornwell decision itself, the precise form in which an applicant indicates his intention to claim benefits is not of importance, the central question being whether the applicant has made clear his wish to claim benefits. The Court finds that in the present case the applicant made clear such intention and that he can accordingly claim to be a victim of a violation of the Convention for the purposes of Article 34.”

We have been asked to resolve one issue that remains unclear. Will it suffice as a precondition to becoming a ‘victim’ for a widower to make clear orally to the relevant authority that he is seeking benefit or must the claim be made in writing? As to this question, Moses J concluded as follows at paragraph 63 of his judgment:

“In my view, and I suspect in the view of the European Court of Human Rights, the claimant must make his claim to benefits clear in writing.”

We do not agree with this conclusion. While it is plainly desirable that a claim should be made in writing, we cannot see why, if it is clear that a claim has been made orally to the appropriate authority, this should not suffice. Normally, such a claim is likely to be recorded in writing. If it is not, then it may be difficult to prove. But, subject to proof, we can see no reason in principle why an oral claim, made and rejected, should not suffice to constitute the claimant a victim. Let us take an extreme example. Imagine that an illiterate widower had arranged a meeting with a social security officer to claim benefit and had been told that he was entitled to none. It seems to us that discrimination would have begun at that moment. We note that in Fielding v UK (Application No. 36940, judgment 8 June 1999) the transcript shows that the Government conceded victim status on the basis of a telephone enquiry to the Benefits Agency. This concession was appropriate. If an authority informs an oral claimant that he has no entitlement to claim, the authority should not be entitled, thereafter, to contend that a claim should have been advanced in writing.

We turn to consider the position in relation to each of the four appellants who were denied benefits. It is important to distinguish between a number of different questions:

Mr Hooper has been widowed on two occasions. His claim relates to the second of these. Mr Hooper’s (second) wife died on 27 March 1997, leaving three dependent children. In April 1997 he wrote to a local DSS office asking that he be awarded benefits in the same way that a widow would have been. In May the DSS replied, refusing his claim on the ground that such benefits were only available to widows. On 1 June 1997 he wrote to the Prime Minister complaining about the rejection of his claim. His letter was referred to the DSS. As a result, he was visited by an employee of the Benefits Agency in August 1997, who again explained to him that he was not entitled to widow’s benefits. Nearly three years later, on 10 May 2000, after hearing about payments being made to complainants in Strasbourg, he wrote to the DSS again, to pursue his claim. On 26 May 2000 the DSS replied declining his claim in terms that we shall have to consider when we come to consider the fifth and sixth issues.

On the same day the Benefits Agency also replied to Mr Hooper, refusing his renewed claim on the ground that there was currently no legislation which entitled a widower to widow’s benefits. Mr Hooper pursued his correspondence, and a DSS letter dated 10 August 2000 informed him that –

“It is, of course, a decision for those widowers concerned as to whether they follow their claims through to the European Court for a ruling on admissibility…”

A letter from Mr Hooper’s solicitors dated 16 August 2000 informed the Benefits Agency that Mr Hooper intended to seek redress either by way of judicial review or by the seeking of an admissibility ruling in Strasbourg, and asked for confirmation that he would have met all the required conditions for benefit, had his wife been a husband and had he been a widow. It was subsequent to this stage, that the HRA came into effect on 2 October 2000.

Moses J found –

“Letters, which he asserts he sent, have not been discovered. But I see no reason for doubting his assertions. It is plain that he was making written claims at least by July 1997 but it is not clear to me that he made a written claim within three months of the death of his second wife on 27 March 1997. He is a victim in respect of Widowed Mother’s Allowance from three months prior to the date of his first written claim to benefits, subject to the arguments as to the retrospectivity of the HRA 1998.”

On the basis that he accepted Mr Hooper’s evidence about his correspondence, the Judge appears to have overlooked the letters to the DSS of April 1997 and to the Prime Minister of 1 June 1997, both within three months of Mr Hooper’s wife’s death. Thus, so far as the Convention is concerned, Mr Hooper became a ‘victim’ in respect of both his claim in relation to widow’s payment and his claim in relation to WMA, for he had claimed, in writing, in respect of both within three months of the death of his wife. The extent to which his claims are defeated by reason of the fact that the HRA did not come into force until 2 October 2000 we shall consider when we come to deal with the eighth issue.

Mr Withey’s wife died on 26 November 1996, leaving two dependent children. His evidence was that in January or February 1997 he made a telephone enquiry of his local Benefits Agency to ask how he should go about applying for widow’s benefits. He was told that he had no entitlement. The Judge found that this did not suffice to make him a ‘victim’; he should have made a claim in writing. This demonstrates the injustice of imposing a requirement for a claim in writing, for Mr Withey can hardly be criticised for not making such a claim after having been authoritatively informed that he had no entitlement to benefit. We hold that his telephone enquiry was enough to constitute him a ‘victim’. Moses J held that, while he failed to make a timely claim in respect of widow’s payment, his letter before action on 29 August 2000 sufficed to constitute him a victim in respect of WMA, with effect from three months before the date of that letter. On either footing, we shall have to consider the effect of the fact that the HRA was not in force on these dates when we come to address the eighth issue.

Mr Martin’s wife died on 11 September 2000 leaving two dependent children. He made an oral claim in September 2000. This constituted him a victim in relation to both Widow’s Payment and WMA. Once again a question arises as to whether his claim can relate back to the period before 2 October 2000, which will fall for consideration in the context of the eighth issue.

Mr Naylor’s wife died on 2 July 1995, leaving no dependent children. He made no claim within three months of her death, and thus is not in a position to contend that he is a victim in relation to Widow’s Payment. On 14 September 2000, however, he made a formal written claim on form BW1. This rendered him a victim in relation to Widow’s Pension. Once again there is a short period prior to 2 October 2000 to which we shall have to give consideration in the context of the eighth issue.

The third issue arises only in the context of Widows Pension and, on this, Mr Naylor’s is the test case. The point can be stated simply. With effect from 9 April 2001, women whose husbands died ceased to be entitled to a Widow’s Pension. As from this date it is common ground that there was insufficient justification for continuing to grant these pensions. Widows already in receipt of pensions were to continue to receive them. Mr Naylor’s wife died in 1995. He suffered discrimination in that he received no pension in consequence of his loss, though if he had died his wife would have received a pension. Because he did not make a claim until 14 September 2000, his claim relates to the period beginning three months before that date. His submission is that, by the year 2000, the discrimination between widows and widowers could not be justified. Moses J was wrong to find to the contrary.

Widows’ Pension was and, for those still entitled to it, is paid weekly to widows under 65 who were aged over 45 when their husband died (or when they ceased to be entitled to WMA). The justification for singling out this large cohort for this benefit was that, as a general proposition, those who comprised it had special financial needs. Widows in this age bracket were likely to have been unemployed, dependent upon the earnings of their husbands for subsistence and not readily able to obtain employment. The justification for ceasing to grant pensions to widows is that this is no longer the position. Over the years married women have increasingly gone out to work and, if widowed, have continued to work or have obtained employment if they were not then in employment. Although statistics show that there is still some disparity between widows aged between 45 and 65 and men within the same age bracket so far as the benefits of employment are concerned, this does not justify the indiscriminate payment of Widows’ Pensions. The change in the legislation grants to widows and widowers alike a bereavement allowance. This is, however, limited to a period of 52 weeks. It is not a substitute for a twenty-year pension.

It follows that if, as Mr Naylor contends, the State has dragged its feet in legislating to bring the grant of Widows’ Pension to an end, the State has not thereby inflicted hardship on widowers in the same age bracket. What they complain of is not discrimination against men, but discrimination in favour of women, and there is a difference.

The legislature has now adopted means to remove this discrimination. The complaint is that it has not done so fast enough. In due course we shall have to consider what will constitute appropriate ‘just satisfaction’ if this complaint is made good. At this point we would simply observe that the nature of the discrimination complained of – excessive generosity to widows rather than oppressive deprivation of widowers - seems to us to be a relevant factor when scrutinising the speed with which the State has moved to remedy the disparity of treatment.

In paragraph 108 of his judgment Moses J observed:

“The essential question seems to me to be not so much whether the position of women in the work-place had converged with that of men but, rather, when that position had been reached and when the Government should have acted to recognise that convergence.”

Mr Cox submitted that the Judge had correctly identified the issue, and we agree.

It should occasion no surprise that the matrix of facts to which the State has had regard when taking decisions about widows’ benefits is complex. Carol Freer, the Head of Work Rules 3 Section of the Working Age Group in the Department of Social Security had, in March 2001, responsibility for policy in relation to widows’ benefits. In a witness statement made in that month she traces the history of widows’ benefits from 1925. She exhibits statistical tables, showing how the position of women in society, and more pertinently in the work place, has changed over the years. A short summary of these gives some indication of the nature of these changes:

“11.

Table 3 shows that in 2000, 84.3% of men were economically active, compared to 72.9% of women. By contrast, the figures for 1985 were 88.1% and 67% respectively. Table 5 sets out the percentage of inactive men and women with family responsibilities. In 2000, 0.9% of men and 12.7% of women fell within this category, whereas in 1985 the figures were 0.4% and 16.4% respectively. These figures show that even during the past 15 years, there has been a marked rise in the number of economically active women, and a corresponding (but smaller) fall in the number of women with family responsibilities who are economically inactive.

12.

Table 4 demonstrates that women still perform overwhelmingly more part-time work than men and this figure remains the same for women throughout the period 1985 to 2000 at 44%, whilst the figure for men has risen from 4% in 1985 to 9% in 2000. Tables 3 and 4 taken together therefore indicate that 84.3% of men are economically active and of these 91% work full-time, whereas 72.9% of women are economically active and of those 44% work part-time (or 56% work full-time). Table 7 sets out the comparison of economic activity of mothers by age of child, and shows that the most marked change has occurred in relation to those with children aged 0-4 years (48.2% economically active in 1990 compared with 58.2% economically active ten years later in 2000).

13.

Statistics regarding income levels are exhibited at “CEF1”, p.200. These show that over time women have been closing the income gap, although the change is less marked for women working part time than for women working full time. In 1972 women working full time earned 64 pence for every £1 that a man earned, whereas by 1999 a woman was earning 84 pence for every £1 earned by men.

…

14.

The fact that substantially more married women return to work quickly after having children now than in the 1970s and 80s also points to younger married women’s greater involvement in the labour market, with them combining work and caring. Reference is made to Table 7 in this regard. Overall, these statistics show that there has been a marked change in the position of younger married women compared with older women within society and the workforce over the past 15 years.”

Carol Freer laid particular emphasis on the position of older women – those who would be the beneficiaries of widows’ pensions. Again she illustrated her theme with statistics:

“27.

Furthermore, this change has taken place only gradually over time. Amongst existing widows there will still be a significant number of women who were wholly dependent on their late husband’s income, and that group will include a particularly high proportion of those older widows whose expectation on marrying was that their husband would provide a significant part if not all of the income of the household whilst they concentrated on bringing up any children and/or looked after the home. Some statistics which illustrate this point … show that:

(1)

44% of working women of all ages work part time, whereas 51% of women aged between 55 and 59 work part time;

(2)

there is a larger rise of 8% in the number of women aged between 55 and 59 working part time compared to those aged 45 to 49;

(3)

there is a significant drop of 21% in women’s economic activity for those aged between 55 and 59 as compared to those aged between 45 and 49;

(4)

men are more economically active than women across all the age ranges; however, the % difference ranges from 11% in the 45 to 49 age group up to 17% in the 55 to 59 age group.

Accordingly older women are less likely to work than both younger women and older men, and when they do work older women are more likely than the average woman to work part time.”

She summarised the State’s case in the following paragraph:

“The Special Position of Older Women

22.

A significant number of older widows, particularly those who stayed at home to care for children, will until now quite reasonably have expected to rely on their husband’s income throughout their life. For very many older women, their and their husband’s expectation on marrying was that their husband would provide a significant part, if not all, of the income of the household, whilst the wife concentrated on bringing up any children and/or looked after the home. For older women a return to the job market and the likelihood of finding full-time employment, although not impossible, would have been more difficult in even the recent past than it is now, since there is today a greater propensity for women of all ages to work at least part-time. So although society’s expectations relating to the role of men and women has been changing during the past 15-20 years, the shift has been a gradual one, and it was therefore reasonable and proportionate for the legislation to continue to provide support by way of widows’ pension to widows during this period of social change.”

We have incorporated these rather lengthy passages from Carol Freer’s evidence because they illustrate the difficulty of the task that the court faces when evaluating an argument that the granting of widows’ pensions should have been discontinued by 2000, rather than April 2001. Moses J grappled with the figures which demonstrated, so he found, that there ought to have been a growing appreciation that affording benefits only to women was having a disproportionate impact on the allocation of resources. At the end of the day, however, he accepted the Secretary of State’s contention that there was objective justification for continuing to pay widows’ pensions until April 2001. He held that the Government was entitled to wait until 1998 to produce a consultation paper on the subject and thereafter to wait until April 2001 before introducing measures designed to achieve equality. In so holding he applied the following principles: (i) it was appropriate for the court to scrutinise the evidence advanced by Carol Freer to see whether justification for discrimination was made out; (ii) the court should adopt a restrained approach to submissions that there were preferable alternative methods of meeting the needs for which widows’ pensions were designed; such submissions directly engaged questions of social and economic policy with which the court was ill-equipped to deal; (iii) the Government was entitled to a period for considering the effect of the increasing part that women had to play within the labour market; (iv) The Government was entitled to a period to correct the effects of discrimination which was no longer justified; (v) in determining how to target resources to those in need, the legislature was entitled to impose “bright line” rules which were easy to apply and which might not focus with precision on the merits of individual cases.

Mr Cox challenged the Judge’s approach in a number of respects. He submitted that it was not appropriate to accord the government a wide margin of discretion or to pay considerable deference to the legislature having regard to the fact that discrimination on account of gender is in issue. Equality between the sexes was a fundamental principle of democracy and of European Community law. Only compelling reasons supported by convincing evidence would suffice to justify a distinction based on sex. Even if there were reasons for the discrimination, they would not suffice unless the discrimination was reasonably proportionate to the object that it was intended to achieve. It would not be reasonably proportionate unless it represented the minimum difference of treatment necessary to achieve that object. On all of these matters the burden of proof lay on the Secretary of State.

Both the Judge’s approach and Mr Cox’s attack upon it find support in the Strasbourg jurisprudence. The Judge relied on Mellacher v Austria (1989) 12 EHRR 391. That case concerned restrictions on the rent that a property owner could charge, which brought into play the second paragraph of Article 1 of the First Protocol to the Convention. The Court observed at paragraph 45:

“The second paragraph reserves to States the right to enact such laws as they deem necessary to control the use of property in accordance with the general interest.

Such laws are especially called for and usual in the field of housing, which in our modern societies is a central concern of social and economic policies.

In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures. The Court will respect the legislature’s judgement as to what is in the general interest unless that judgement be manifestly without reasonable foundation.”

Mr Cox argued that, while this principle applied to dealings with property, it did not extend to a situation that involved discrimination on the ground of gender. He relied on Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471; Burghartz v Switzerland (1994) 18 EHRR 101; Van Raalte v Netherlands (1997) 24 EHRR 503.

Abdulaziz involved discrimination in the field of immigration. Non-national wives were permitted entry into the United Kingdom to join their husbands, more readily than husbands were permitted entry to join their wives. The Government sought to justify this on the ground that it was necessary to protect the labour market at a time of high unemployment, because men were more likely to seek work than women. The Court held that the impact on the labour market was insufficiently significant to justify the discrimination. It is also worth recording the Court’s reaction to another argument, which has some relevance in the present context:

“82.

There remains a more general argument advanced by the Government, namely that the United Kingdom was not in violation of Article 14 by reason of the fact that it acted more generously in some respects – that is, as regards the admission of non-national wives and fiancées of men settled in the country – than the Convention required.

The Court cannot accept this argument. It would point out that Article 14 is concerned with the avoidance of discrimination in the enjoyment of the Convention rights in so far as the requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.”

Burghartz involved discrimination between husband and wife in relation to the entitlement to use family names. No substantive justification was put forward for this other than tradition. In these circumstances, the Court commented at paragraph 27:

“The Court reiterates that the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention.”

In Van Raalte Dutch law provided for an exemption for unmarried childless women over the age of 45 from the obligation to pay contributions under the General Child Benefits Act. The applicant was an unmarried childless man who objected that his obligation to pay such contributions from 1985 to 1988 was discriminatory and violated Article 14 when read with Article 1 of the First Protocol. The exemption had been enacted in 1962 and abolished in 1989. The Commission concluded that the principal reason for this discrimination was sympathy for the plight of childless women whose condition would be exacerbated if they had to contribute to child benefit. The Commission considered that such considerations had become outmoded. They conceded at paragraph 44 that:

“…it is difficult to establish exactly at what moment developments have attained a durability and general acceptance which require them to be incorporated into legislation.”

They concluded, however, that on the facts the continuation of the discrimination until 1989 could not be justified as being the inevitably belated reaction to developments in society. The Court concurred.

This decision comes closest to the facts with which we are concerned. There are, however, significant differences. In Van Raalte there was, on analysis, no significant distinction between the position of women and men. On the facts before us there has, at all times, been a significantly larger proportion of widows between the ages of 45 and 65 without employment than of widowers in the same age group. The contrast between the two cohorts has, however, been steadily shrinking. At what point did the distinction between the two cohorts reduce to such an extent that Article 14 required the State to take action to remove the favourable treatment accorded to widows?

Despite Mr Cox’s submissions, we consider that in answering this question a very considerable margin of discretion must be accorded to the Secretary of State. Difficult questions of economic and social policy were involved, the resolution of which fell within the province of the executive and the legislature rather than the courts. In this context we revert to the fact that the issue was the point in time at which benefits which had long been enjoyed by widows should be withdrawn. No statistical formula or calculation could provide a precise answer to this question. At the end of the day, however, the burden must lie on the Secretary of State to provide objective justification for what was, without question, discrimination in favour of women.

We have concluded, contrary to the conclusion of Moses J, that the Secretary of State has failed to discharge this burden. Different strands of the evidence all lead to the same conclusion. By 1995, if not earlier, the difference in economic activity between women and men no longer justified discriminating between them by paying, indiscriminately, pensions to widows aged between 45 and 65.

The starting point must be the statistics. We have quoted above the passage from Carol Freer’s statement in which she compares the economic activity of women in 1985 with that in 2000. It is informative to compare, in the tables to which she refers, the position in 2000 with the position in 1995. We have extracted the relevant data:

Table 1 - Older women compared to younger women

% of women economically active

	1995	2000
Age 18-24	69.8%	70.8%
Age 25-34	71.6%	75.3%
Age 35-39	76.6%	77.7%
Age 50-59	63.2%	65.9%

Table 2 - Older men compared to older women

% of older men and women economically active

	1995	2000
Men aged 50-64	71.5%	72.5%
Women aged 50-59	63.2%	65.9%

Table 3 - % of men and women economically active

	1995	2000
Men	84.7%	84.3%
Women	70.9%	72.9%

Table 4 - Part time working by men and women

	1995	2000
Men	8%	9%
Women	44%	44%

Table 5 - Comparison of economically inactive men and women looking after family/home

	1995	2000
Men	0.7%	0.9%
Women	15.4%	12.7%

Table 7 - Comparison of economic activity of mothers by age of child

Age of child	1995	2000
0-4 years	51.9%	58.2%
5 to 10 years	71%	73.6%
11 to 15 years	77%	78.3%
16 to 18 years	81.8%	80%

The change between 1995 and 2000 can be seen to be relatively modest. This, of course, would be nothing to the point if the figures spanned a watershed, but it does not seem to us that they do. The economic activity of women in 1995, including older women, makes it difficult to accept that there was still justification for the payment of pensions to all older widows as a class. By 1995, in 22.7% of all households where the woman was in some form of paid employment, she was also the main breadwinner.

Our impression that 1995 to 2000 was not a watershed period receives support from comments made by those who had the conduct of the Welfare Reform and Pensions Bill on behalf of the Government in Parliament. The Consultation Paper published by the Government in November 1998, after stating that the current scheme was unfair because, among other reasons, ‘It gives most help to people who do not need widows’ benefits all their lives when they are earning a decent living or have large occupational pensions or life insurance’, went on to describe the case for reform as ‘overwhelming’. ‘Equal treatment’, it commented, ‘can no longer be ignored’. In Committee, Mr Stephen Timms MP described the benefits system as ‘hugely out of date as regards bereavement’ and ‘woefully out of date’. Mr Stephen Bayley MP, Parliamentary Under Secretary of State for Social Security, said:

“The current system is both unfair and outdated. It does not reflect today’s society with 70% of married women now working and it openly discriminates against married men. We agree that widowers have been poorly treated by the system in the past and we want to change that for the future.” (HC Hansard 25 March 1999)

Looking at the position in Europe, the following countries had established equal entitlement to survivors’ benefits by 1995: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden, Russia and Turkey. Moses J commented that it was difficult to accord overriding weight to this factor. The brief description of the position in other countries did not enable the court to assess the overall economic impact of the measures taken. As a general proposition we agree, but the overall picture cuts the ground from the submission, largely ‘ex cathedra’, that there were good reasons for the Government to take no steps to bring this country into line with our neighbours until 1998.

For these reasons we find that the Secretary of State has failed to establish that, after 1995, there was objective justification for not taking steps to remove the discrimination involved in paying pensions to widows aged between 45 and 65, when widowers had no similar entitlement.

The best way of explaining this issue is to quote the paragraphs of the skeleton argument submitted on behalf of the State in which the Walden point is advanced:

“It is an established principle in the jurisprudence of the ECtHR that where there is a potential breach of the Convention, the relevant domestic legal authorities are afforded a reasonable period within which to change clear statutory provisions for the future, and are not be treated as having been in breach of the Convention in other cases, retrospectively: see Marckx v Belgium (1979) 2 EHRR 330, para. 58; Walden v Liechtenstein, ECtHR, decision of 16 March 2000, at pp. 6-7; JR v Germany (App. No. 22651/93, decision of 18 October 1995). The starting point for this reasonable period may be an authoritative ruling by the ECtHR or by a national constitutional court on the critical point.

The essence of this doctrine is that in circumstances where the legal position has been unclear and it is then authoritatively clarified, and where an entire administrative system (e.g. for the payment of welfare benefits) will have to be adjusted as a result to take account of the law as clarified, it is reasonable to afford a state a reasonable period to adjust – while in the meantime maintaining the application of the established rules in respect of persons affected. This is in the interests of promoting legal certainty, ensuring that changes can be properly funded, and ensuring that the system can continue to be properly administered without invidious or difficult choices having to be made by state officials responsible for administering the system (which would carry the risk of unjustified differential treatment of similar cases)”.

The Secretary of State submitted in his skeleton argument that the earliest point at which the State could be required to take action ‘under the domestic regime’ was 2 October 2000, when the HRA came into force. By that time Parliament had already recognised, by passing the 1999 Act, that the differential treatment between widows and widowers needed to be corrected. The complexity of the changes required a reasonable period of delay before they were implemented. The 1999 Act, in fact, came into force only 6 months after 2 October 2000. This period of delay was no more than reasonable. Thus it followed, so the State submitted, that no complaint could be made of breach of the Convention during this period, or earlier. This submission received a degree of refinement in the course of oral argument, but remained the same in principle. We propose to look at the principle before relating it to the facts.

In Marckx the Strasbourg Court was concerned with a provision of Belgian law that restricted the capacity of a mother to give or bequeath property to her illegitimate child. The Court held that this provision infringed Article 8 and Article 14, when taken in conjunction with both Article 8 and Article 1 of the First Protocol of the Convention. The question was raised of the effect that the Court’s judgment might have on the many distributions of estates within Belgium shown to have been effected according to law which infringed the Convention. In a ruling which was without precedent at Strasbourg, but which drew on the jurisprudence of the Luxembourg Court, the Court held:

“Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present Judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effects of those decisions of that court that annul legislation.”

Walden was a case concerned with a Liechtenstein pension law that discriminated against women. After protracted civil litigation, in which the applicant was unsuccessful at all levels, including the Supreme Court, he obtained a ruling from the State Court, sitting as a Constitutional Court, that the relevant legislation was unconstitutional as being contrary to the principle of non-discrimination on the ground of gender. Legislative procedures were already in train to reform the legislation in a manner which would make it Convention compliant. The legislation was, however, complex and the proposed changes might take time. In these circumstances, the State Court decided not to set aside the legislation or to quash the decision of the Supreme Court.

The Strasbourg Court noted that the parties’ submissions concentrated on the question of whether the State Court should have set the contested legislative provisions aside. The applicant contended that it should have done so, with retroactive effect. The Government contended that it was prevented from doing so for reasons of legal certainty. In fact, the amending legislation was introduced within about seven months of the State Court’s decision. The Strasbourg Court ruled as follows:

“Taking all these circumstances into account, the Court finds that the present case does not differ substantially from the case in which a Constitutional Court annuls an unconstitutional provision and sets a time-limit for enacting new legislation. It, therefore, considers that the State Court’s decision, which had the effect that unconstitutional legislation remained applicable to the applicant for a limited period, served the interests of legal certainty. Given the brevity of this period which ended about seven months after the State Court’s decision, namely on 1 January 1997 when new legislation entered into force, the continued application of the pension provisions at issue can also be regarded as proportionate.”

Two related principles are to be derived from the two cases that we have just considered. (1) Where the Strasbourg Court rules that a State’s legislation violates the Convention, the Court can, in the interests of legal certainty, direct that its decision shall not have retrospective effect. (2) Where the Constitutional Court of a State rules that a law of that State is unconstitutional in a respect which violates the Convention, that Court will not itself infringe the Convention if it refrains from annulling the legislation in order to permit its orderly amendment within a reasonable time.

We cannot see how either of these principles impacts on the present case. As to the first principle, we understand that the Strasbourg Court has only applied this once – in the case of Marckx itself. The complaint made against the Secretary of State is that he delayed too long in initiating reform, to which it can be no answer that it takes time to implement reform.

So far as the second principle is concerned, this country has no Constitutional Court. The manner in which we have given effect to the Convention preserves the supremacy of Parliament. The Court can do no more than declare legislation incompatible with the Convention, leaving it to Parliament to address the offending legislation. The Walden principle can have no direct application in this jurisdiction.

Having said this, we consider that the Walden principle reflects the fact that the State is entitled not merely to a wide margin of appreciation when considering whether and when a change is required to the law in order to ensure that it remains Convention compliant in changing circumstances, but that, having so decided, it is entitled to such time as is reasonable to make the necessary change. No criticism has been, or in our view could be, made of the period taken to consult on and then introduce the 1999 Act. The criticism, which we have held to be well founded, has been of the delay in deciding that a change in the law was necessary.

The submissions in relation to this issue were made by Mr Goudie QC on behalf of Mr Hooper and adopted by Mr Cox on behalf of Messrs Withey and Martin. It could not be advanced on behalf of Mr Naylor because no claim in respect of Widow’s Pension has been the subject of a settlement at Strasbourg.

The submissions can be summarised as follows. Claimants have brought claims in Strasbourg which mirror those of the appellants. The State has followed a policy of settling Strasbourg claims as soon as they have been held to be admissible. The State has declined to settle the claims of the appellants. This, so it is alleged, constitutes discrimination in favour of the Strasbourg claimants which infringes Article 14, in combination with Article 8 and with Article 1 of the First Protocol.

We have had difficulty in identifying the precise nature of this issue. On reflecting on Mr Goudie’s submissions after the October hearing it seemed to us that the case which he had advanced differed from that which Moses J had addressed. We sought clarification of his case at the March hearing and this made it clear that it does indeed differ from the case addressed in the judgment of Moses J It is not clear to us whether this is because Moses J did not fully appreciate the nature of the appellants’ case or because Mr Goudie has refined his case since the hearing at first instance. Certainly no objection was raised on behalf of the Secretary of State that Mr Goudie had changed his ground. We propose first to make some general comments about the nature of claims of breach of Article 14, then to consider the manner in which Moses J dealt with the issue and finally to address the issue as it was presented before us.

Article 14 forbids discrimination in securing Convention rights and obligations. The Article makes plain the grounds of discrimination against which it is primarily addressed, namely ‘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’. Thus, typically, the Article addresses the situation where a State discriminates against a readily identifiable class in the manner in which it respects, or fails to respect, Convention rights. The discrimination need not go so far as infringing the Convention rights of the party discriminated against – were that the case Article 14 would be superfluous. More generous treatment in securing the enjoyment of a Convention right by one class rather than the other can suffice to engage Article 14, in conjunction with the right in question. We repeat the principle stated by the Strasbourg Court in Abdulaziz:

“The victim of discrimination within the meaning of Article 14 includes, in general, cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.”

The nature of this nexus between Article 14 and some other Convention right is usually described, not very helpfully, by the proposition that the facts must fall ‘within the ambit’ of a substantive Convention right.

Where it is alleged that Article 14 has been infringed it is first necessary to consider whether the claimant has been treated less favourably in relation to the enjoyment of a Convention right than others. If he has, the next task is to identify why this is – on what grounds has he suffered discrimination? If there is no rational explanation for the discrimination, Article 14 will not be engaged. Equally, if the discrimination has been for some idiosyncratic reason, such as a personal dislike of the claimant on the part of a state official, Article 14 will not be engaged. The terms of Article 14 suggest that what has to be demonstrated is that the claimant is one of a class or group who share a distinguishing characteristic and that this characteristic is the ground upon which the State distinguishes against the members of the class or group. Racial discrimination is the paradigm example.

It follows that the reason for the discrimination will be the touchstone of the identification of the class. The identification of a common factor which results in discrimination will at the same time result in the identification of the class or group discriminated against. Care has to be taken to make sure that the common factor is, indeed, the ground for discrimination. This will not be so if there are other factors which explain treating the claimants differently from others. Thus it is necessary to be sure that, apart from the alleged ground for discrimination, the claimants are in an analogous situation to those who are more favourably treated. Consideration of an Article 14 claim usually involves comparing the class into which the claimant falls with a comparator class that is treated more favourably. An issue can arise, and does arise in this case, as to whether the distinction between the two classes has to be a personal characteristic or status, such as one of the examples listed in Article 14.

In the leading judgment in Michalak v London Borough of Wandsworth [2002] EWCA Civ 271; [2002] 39 HLR 721; [2002] 4 All ER 1136, Brooke LJ recommended the following structured approach to consideration of an Article 14 claim. The court should ask, sequentially, four questions. If any one is answered in the negative it will normally follow that the claim is ill-founded. The questions are:

“(i)

Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see Human Rights Act 1998, section 1(1))?

(ii)

If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (‘the chosen comparators’) on the other?

(iii)

Were the chosen comparators in an analogous situation to the complainant’s situation?

(iv)

If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?”

We agree with Brooke LJ that this structured approach is helpful. It is one that was followed by Moses J.

The foundation of the claim before Moses J was a policy followed by the Secretary of State which the claimants alleged infringed Article 14. The policy was stated in a letter written on behalf of the Secretary of State to Mr Hooper on 26 May 2000 in the following terms:

“As you know, the Government has secured friendly settlement in two [Strasbourg] cases recently. Nevertheless there is no statutory basis to make payments of Widow’s Benefits to men and the Government’s obligation, following the European Court of Human Rights’ finding that the cases are admissible, is to future widowers.

There are no plans to make extra-statutory payments before the new bereavement benefits are introduced other than to those widowed fathers who take cases to the European Court of Human Rights and obtain an admissibility ruling.”

As Moses J understood the position, the claimants identified themselves as belonging to a class of claimants in domestic proceedings and identified as the comparator and more favoured class, claimants before the Strasbourg Court. The discriminatory treatment complained of consisted of reaching friendly settlements with Strasbourg claimants whose claims had been ruled admissible but refusing to conclude similar settlements with domestic claimants.

Moses J first considered whether the facts fell ‘within the ambit’ of Article 8. He decided, very shortly, that they did. Before us the Secretary of State challenged that conclusion. We consider that Moses J was correct for the following simple reason.

It is common ground that discrimination between widows who receive benefits and widowers who do not engages Article 8. It seems to us to follow that discrimination between Strasbourg claimants whose Article 8 claims are settled and domestic claimants whose Article 8 claims are not settled must also engage Article 8. Counsel for the Secretary of State sought to dissuade us from this conclusion by submitting that the Strasbourg claimants were claiming compensation in respect of breaches of their Article 8 rights whereas the domestic claimants were seeking to enforce such rights. We failed to follow why this should make any difference.

Moses J took it as read that there was different treatment in settling Strasbourg claims but not settling domestic claims. He then turned to the third question identified by Brooke LJ, namely whether Strasbourg claimants and domestic claimants were in an analogous situation. In order to answer this question Moses J considered two matters, although not in this order: (1) would discrimination in favour of claimants on the ground that they were claiming in Strasbourg, rather than in England, engage Article 14? (2) Were there grounds for distinguishing between Strasbourg claimants and English claimants other than simply the venue in which the claims were being pursued?

Moses J answered the first question in the negative. The Secretary of State submitted to Moses J., and submits to us, that the difference in treatment of Strasbourg claimants and domestic claimants does not fall within Article 14 because Article 14 only applies to discrimination on the ground of ‘a personal characteristic (status) by which persons or groups of persons are distinguishable from each other’ Kjeldsen, Busk Madsen and Pedersen v Denmark [1975] 1 EHRR 711. Moses J accepted this submission. Mr Goudie submitted to us that the Kjeldsen case was outdated jurisprudence and referred us to the very recent decision of this Court in Michalak in support of this submission. We share the view expressed by Brooke LJ in that case, at paragraph 34, that Kjeldsen appears to have been superseded by more recent Strasbourg authority. We can see no reason in principle why litigants in the English Court should not be entitled to complain under Article 14 if, on the ground of their status as litigants in that court, they are treated less favourably than litigants before the Strasbourg Court in a manner which engages one of the other Convention rights.

Accordingly, we do not agree with the reasoning of Moses J in relation to this first question. It is, however, no longer relevant (if it ever was) for Mr Goudie has made it plain that he does not rely upon the venue of litigation as being the characteristic which distinguishes between the claimants and the Strasbourg litigants, or as the ground upon which the adverse treatment of the claimants is based.

In dealing with the second question, Moses J concluded that it was not simply the venue in which the claims were brought that was the ground for distinguishing between Strasbourg and domestic litigants. There were substantive differences between the relief available in the two jurisdictions. He cited Stubbings v UK (1996) 23 EHRR 213 and National and Provincial Building Society v UK (1997) 25 EHRR 127 as establishing that the forum in which the claimants litigate may afford a valid ground for distinction between groups of litigants. It does not seem to us that either of these decisions establishes that proposition, but we think that the facts of this case are demonstration enough that the proposition is true. To succeed in the domestic forum the claimants have to surmount the barriers posed by section 22(4) of the HRA. That section precludes a claimant from basing a claim under the Act on any act that took place before 2 October 2000 when the HRA came into force. Most of the claimants became ‘victims’ before 2 October 2000. Those who claim in Strasbourg will not be affected by the fact that their claims relate to decisions taken before 2 October 2000. In this jurisdiction the Secretary of State contends that the relevant decisions, or at least some of them, were taken before 2 October 2000 and is invoking section 22(4) of the HRA in answer to the claims - see the eighth issue below. There are thus substantive grounds for resisting the claims in this jurisdiction which are not available at Strasbourg. Litigants in this jurisdiction are patently not in an analogous situation to litigants before the court in Strasbourg. Moses J was correct so to conclude.

Moses J held that, because claimants at Strasbourg were not in an analogous position to claimants before the English court, it was unnecessary to consider whether there was an objective justification for treating them differently. He went on to do so nonetheless, because he held that a similar question arose under the plea that the differentiation of treatment was irrational and therefore unlawful under principles of domestic public law. He held that because claims brought in the English court raised ‘major constitutional points in domestic law’ it was rational and legitimate for the State to settle claims in Strasbourg but to leave itself free to pursue the issues that arose in domestic law.

The issues of objective justification and rationality considered by Moses J are similar to issues raised by the ‘Strasbourg discrimination’ issue as formulated, or re-formulated, before us. We propose to consider them in that context.

The clue to the fact that the Strasbourg discrimination point was to be put before us on a different basis to that considered by Moses J was to be found in a passage in Mr Goudie’s skeleton argument. This contended that the justification accepted by Moses J was directed at the wrong target in that it addressed the issue of why the State had not settled the present proceedings but did not address Mr Hooper’s actual complaint that ‘he should have received an extra-statutory payment without having to commence any litigation at all’. At the October hearing neither we, nor we believe counsel for the Secretary of State, fully appreciated the nature of the case being advanced. This was clarified by Mr Goudie at the resumed hearing in March. His argument on behalf of Mr Hooper runs as follows:

In this way Mr Goudie seeks to get on its feet a claim that will compensate Mr Hooper for failure to receive benefits during the period before the HRA came into effect, thereby finessing the effect of section 22(4)(b) of the HRA. Messrs Withey and Naylor are in the same position in relation to discrimination that they allege occurred before 2 October 2000.

At the March hearing Mr Sales clarified the Secretary of State’s policy. It applied only to claims commenced at Strasbourg before 2 October 2000, which claims necessarily covered a period before the HRA came into force. In relation to those claims it was at all material times the policy of the State to reach a friendly settlement with the claimant once the claim had been ruled admissible by the Strasbourg Court. This policy did not extend to claims commenced after 2 October 2000. As far as such claims are concerned, it has been the practice of the State to contend that they are inadmissible because the claimant has not exhausted the remedies that are, or may be, now available in this country under section 6(1) of the HRA.

It seems to us that, while Mr Hooper, Mr Withey and Mr Naylor are all in a position to contend that, as pre 2 October 2000 victims, they are in comparable positions to those whose cases have been the subject of friendly settlements at Strasbourg, Mr Martin is not in the same position as he did not become a victim until 2 October 2000.

Before us Mr Sales understandably sought to rely upon a recent ‘partial decision as to admissibility’ by the Strasbourg Court in relation to 26 applicants who have advanced claims similar to those with which we are concerned. Two applicants advanced claims similar to that of Mr Wilkinson, described as claims in respect of ‘Bereavement Tax Allowance’. They contended that they had been discriminated against as compared with other widowers who had received payments under friendly settlements of their claims. The Court ruled that this discrimination claim was ‘manifestly ill-founded, remarking:

“The Court notes that the men concerned have received those payments in friendly settlement of applications which have been communicated to the Government by this Court. The Court considers that the applicants in the present cases are not in an analogous situation to those men…”

While this decision is plainly in point, we have been unable to follow the precise reasoning of the Court. Quite apart from this decision, however, it seems to us that there is a fatal flaw in the Strasbourg discrimination claim as now formulated. The policy alleged to be discriminatory is one under which any pre HRA victim who brought a claim at Strasbourg before 2 October 2000 and has that claim ruled admissible, will receive a friendly settlement. That policy does not create two classes of victims, one of which is treated more favourably than the other. It applies a single condition precedent to receipt of a friendly settlement by a member of a single class - namely pre HRA victims. The reason why Mr Hooper and those in a like position are not able to benefit from this policy is because they have not advanced a claim at Strasbourg, not because there is a policy which discriminates between one class and another.

For this reason, we consider that the fifth issue falls to be decided against the appellants. The issue of objective justification does not arise. However, a similar issue remains alive under domestic public law, and we now turn to consider it.

The irrationality challenge can be simply stated. Mr Goudie contended that the State’s policy of declining to pay victims of discrimination unless and until a claim had been brought at Strasbourg and declared admissible was a policy of attrition that had no justification and was irrational and unfair. There could be no justification for requiring claimants to follow a course which involved treading a road which was ‘long and hard’ and which now included exhausting domestic remedies under the HRA before finally settling at Strasbourg a claim which was certain to succeed. He contended that the State should have treated the friendly settlement reached in the Strasbourg proceedings in Cornwell v UK as if it were the determination of a test case, so that other claimants in the same position as Mr Cornwell should be treated in similar fashion. He relied, by analogy, on the approach of this court in R v Hertfordshire CC ex parte Cheung (The Times 26 March 1986).

Cheung was not a test case. We do not consider that the suggested analogy is a fair one, or that a settlement without admission of liability, whether at Strasbourg or in any other proceedings, requires the State to make equivalent payments to all in a like position to the claimant whose claim has been settled. A well recognised motive for settling a case is to avoid the risk of an adverse decision and a settlement cannot be considered as carrying the same consequences as such a decision.

Article 38 of the Convention provides as follows:

“1.

If the Court declares the application admissible, it shall ….

(b)

place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto.”

Rule 62 of the Rules of the Strasbourg Court make the following provisions in relation to friendly settlements:

“1.

Once an application has been declared admissible, the Registrar, acting on the instructions of the Chamber or its President, shall enter into contact with the parties with a view to securing a friendly settlement of the matter in accordance with Article 38 §1(b) of the Convention. The Chamber shall take any steps that appear appropriate to facilitate such a settlement.

2.

In accordance with Article 38 §2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ argument in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.

3.

If the Chamber is informed by the Registrar that the parties have agreed to a friendly settlement, it shall, after verifying that the settlement has been reached on the basis of respect for human rights as defined in the Convention and the protocols thereto, strike the case out of the Court’s list in accordance with Rule 44 §2.”

We can see no basis for spelling out of these provisions a principle whereby a friendly settlement of a claim requires a State to treat all others in the same position as the claimant in the same way. No precedent has been cited to us to support such a proposition, whether in the jurisprudence of the Strasbourg Court, or in our domestic jurisprudence.

Moses J accepted the contention of Mr Sales that it was legitimate and rational for the State to settle cases at Strasbourg in order, in effect, to keep its powder dry to fight the first battle before the domestic court once the HRA had come into force. Mr Goudie complained that this assertion was unsupported by any evidence and was unconvincing. In a footnote to its skeleton argument for the resumed hearing, the Secretary of State provided details of the battle that the United Kingdom is currently fighting before the Strasbourg Court to ensure that, at the present time, no claim of the type with which we are concerned should be admitted until a remedy has first been sought in domestic proceedings under the HRA. We consider that this lends some support to the contention that the Government’s strategy has been all along to preserve for litigation in the domestic forum issues with which we are concerned before contesting these at Strasbourg. At the end of the day, however, we do not consider that this is something which the Secretary of State has to prove. It suffices that we can see nothing demonstrably perverse, irrational or unfair about a course of conduct which has brought about that result.

Moses J held that payment of Widow’s Payment and WMA to widows, but not to widowers, involved infringement of Article 14, in conjunction with Article 8, which could not be justified. That finding has not been challenged before us. He held that the Secretary of State had objective justification for paying Widow’s Pension to widows but not to widowers. We have allowed the appeal against that finding. Moses J held that the appellants were entitled to a declaration that sections 36 and 37 of the 1992 Act were incompatible with their Convention rights, but not to any monetary compensation. This was because he ruled that section 6(2)(b) of the HRA provided the Secretary of State with a defence to the allegation that he had acted unlawfully. The appellants challenge that conclusion.

The manner in which the appellants put their claim is as follows:

Before Moses J the debate in relation to this issue focussed exclusively on the effect of section 6(2) of the HRA. Moses J introduced his consideration of this issue with the following statement:

“Mr Sales accepts that section 6(2)(a) has no application in the instant case. He makes the important concession that sections 36 and 37 [of the 1992 Act] do not expressly, or by implication, exclude the power of the Crown to make an extra-statutory payment. The source of such power … was not made clear to me.”

At the October hearing we sought clarification from Mr Garnham as to the basis of the Secretary of State’s concession. This led him to place before us a paper on parliamentary control over expenditure to the effect that any payment to widowers on an extra-statutory basis would need to be accounted for within estimates presented to Parliament. This did not wholly answer our question – indeed it seemed to us, and we suspect to Mr Garnham, that this suggested, at the least, that parliamentary approval would be needed before the Secretary of State could make payments to widowers. Right at the end of the October hearing, however, Mr Garnham informed us, on instructions but without explanation, that the Secretary of State enjoyed extra-statutory power to make payments to all widowers of sums equivalent to the benefits received by widows.

We have not been prepared to accept this concession without question and, at the resumed hearing, we asked the parties to present argument on the predicate that it was unsound. At that hearing Mr Sales provided, in a lengthy section of his skeleton argument, an explanation of the concession. He also emphasised that, while in the context of the present case, this was correctly described as a concession, the Secretary of State was concerned at the wider implications of a possible finding by this court that he enjoyed no common law power to make the payments in question.

The issue of whether the Secretary of State enjoys the common law power in question need not be addressed if Moses J was correct to conclude, on the premise that he enjoyed such a power, that he committed no breach of duty in deciding not to exercise it. We turn first to that question.

The appellants’ argument is a simple one. If the Secretary of State has a power to make extra-statutory payments, section 6(1) obliges him to exercise that power for, by so doing, he will avoid the breach of the appellants’ Convention rights which will otherwise occur. Moses J rejected this argument. He held:

“In the instant case, it seems to me that the fatal flaw in the claimants’ argument is that its effect is to convert the power to make an extra-statutory payment into a duty. It destroys the power altogether. There are no circumstances in which the defendant could exercise a power not to give a benefit.

For that reason I conclude that the primary legislation is incompatible with the Convention. Whatever the nature of the power, at least it can be said that the legislation imposes no duty to give benefits to widowers and cannot be read in a way which has that effect. The Secretary of State’s refusal gives effect to those provisions and the power to make statutory allowances is irrelevant. He can rely upon Section 6(2)(b).”

At the October hearing we had difficulty in understanding this passage from the judgment below and following the argument advanced on behalf of the Secretary of State to support it. With the benefit of further submissions made at the March hearing, we now believe that we understand this argument. We shall set out, in stages, the argument as we understand it.

We accept the starting point of this argument. If a statute confers an express power which can only be exercised in a manner which infringes a Convention right, then Parliament has expressly authorised a breach of the Convention. Section 6(2)(b) preserves the supremacy of Parliament by permitting an authority to exercise the power granted by Parliament.

The chain of reasoning that follows is, however, fallacious. If the 1992 and 1999 Acts do not restrict a common law power enjoyed by the Secretary of States to make payments to whomsoever he pleases, it does not follow that Parliament has thereby authorised the Secretary of State to ignore the requirements of the HRA when deciding whether or not to exercise that power. A duty in certain circumstances to make payments to widowers is in no way incompatible with a general common law power to make payments to anybody.

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

The Secretary of State’s primary case, albeit contrary to his interests in this litigation, has been that the 1992 and the 1999 Acts left him free, if he thought fit, to introduce an extra-statutory regime under which widowers would receive benefits commensurate to those to which widows were entitled under the two Acts. Alternatively he submitted that, if the two Acts preclude his common law power to make payments to widowers, they do so comprehensively, so that he has acted beyond his powers in settling with Strasbourg claimants and will not even have power to honour any judgments that may be given in favour of the litigants in these proceedings.

Paradoxically, while the Secretary of State has been prepared to concede that he has common law powers that would enable him to make payments to all widowers, Mr Goudie, on behalf of Mr Hooper, has been prepared to concede that he has not. Mr Goudie has accepted that it would be inconsistent with the scheme of the legislation for the Secretary of State to pay to all widowers’ benefits equivalent to those received by widows. He has argued that the Secretary of State nonetheless retains common law powers to make payments to those who have brought these proceedings and to those other claimants who are in the same position as the appellants.

If the appellants are to succeed in their claims to monetary payments we think that they must demonstrate that the 1992 and 1999 Acts left the Secretary of State free to make extra-statutory payments to all widowers. If they did, then it can be argued that the Secretary of State should be ordered to exercise that power in favour of the appellants, or pay damages in lieu. If they did not, the Secretary of State will have a defence under section 6(2)(a) of the HRA on the basis that the Acts required him to make payments to widows in circumstances where he had no power to make equivalent payments to widowers.

It is unfortunate that we approach this important issue of the powers of the Secretary of State in circumstances where the two parties have made conflicting concessions against interest. The result is that the issue has not been fully explored in argument.

The appellants’ claim to an order for money payment is founded on the contention that the Secretary of State had and has the power to make ex gratia payments that will place widowers in the same position as widows. While the Secretary of State has purported to accept that this is indeed the position, much of the argument advanced on his behalf has been to the effect that it would be contrary to the will of Parliament to exercise that power in the manner suggested. Thus, in the skeleton argument for the October hearing, prepared by Mr Sales and Miss Stratford, the following contention is advanced:

“To seek an order from the Court in relation to an extra-statutory, discretionary payment is, the Respondent respectfully submits, misconceived. In substance, the Appellants are attempting to mount a collateral attack on Parliament’s failure to legislate in a particular way in the 1992 and/or 1999 Acts, and its deliberate choice to confine widow’s benefits to widows (with no entitlement for widowers). The necessary implication of the Appellants’ argument in this respect is that the Secretary of State is required under the HRA 1998 to set up the very scheme for payment of benefits to widowers which Parliament chose not to set up when it legislated by way of primary legislation in this field; according to the Appellants the Secretary of State must treat himself as bound to make such payments, whereas Parliament specifically decided that he should not be so bound. Such a collateral attack upon Parliament’s failure to legislate in this regard would be directly contrary to the provisions of the HRA 1998, to the scheme of that Act, and to parliamentary sovereignty which the HRA 1998 is careful to preserve.”

After referring to the constitutional principle that there be full Parliamentary control over taxation and expenditure – see Dicey, Introduction to the Study of the Law of the Constitution (10^th Ed) pp.315-8 – the skeleton argument continues:

“It would not (with respect) be constitutionally legitimate for the courts, even with the benefit of the HRA 1998, to impose requirements as to extra-statutory payments to be made by the Crown to fill in a gap deliberately left by Parliament in legislation.”

These submissions are echoed by Moses J’s observation in paragraph 185 of his judgment that Mr Goudie’s argument in relation to section 6 came ‘perilously close to a submission that the court should impose a duty to grant benefits where Parliament has chosen not to do so’.

Mr Sales accepted that where Parliament has legislated in such a way as to occupy an entire field, any prerogative or common law right of the Crown to act within that field will be displaced. He contended, however, (against his interest in this appeal) that the 1992 and 1999 Acts did not occupy the field in relation to bereavement benefits so as to preclude the common law power of the Crown to pay these to widowers. We had difficulty in reconciling that submission with the passages of argument that we have set out above and so, it seems, did Mr Goudie. We turn to consider the authorities to which Mr Sales referred us.

The starting point is AG v De Keyser’s Royal Hotel [1920] AC 508. In that case the House of Lords held that a statutory power to requisition property displaced the prerogative power to do this that the Crown would otherwise have enjoyed. Lord Dunedin observed at p.526:

“if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules.”

Lord Atkinson at p.540 said:

‘after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done under the statute…’

Mr Sales submitted, however, that this principle had no application on the facts of the present case. Statutes should not be treated as binding the Crown, or fettering the powers of the Crown, unless they did so expressly or by necessary implication – see Lord Advocate v Dumbarton DC [1990] AC 580; R. v Secretary of State for the Home Department ex p. Northumbria Police Authority [1989] QB 26. The general principle advanced by Mr Sales is not in doubt. But we are here dealing with a suggestion that the Court can grant relief against the Crown on the basis that the Crown has both the power under common law and the duty under section 6(1) of the HRA, to put in place an ex gratia regime of paying bereavement benefits to widowers when Parliament has made express statutory provision as to the circumstances in which such benefits should be paid to widows and, under the 1992 Act as amended by the 1999 Act, to widowers. In this context it is necessary to have regard to this injunction of Lord Bridge in Holden & Co v. CPS (No.2) [1994] 1 AC 22 at p.33:

“But still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and the expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure. As it was put by Viscount Haldane in Auckland Harbour Board v The King [1924] A.C. 318, 326:

‘it has been a principle of the British Constitution now for more than two centuries … that no money can be taken out of the consolidated Fund into which the revenues of the state have been paid, excepting under a distinct authorisation from Parliament itself.’”

The rules governing the circumstances in which Ministers can properly make payment out of public funds are rules of constitutional law of some complexity. We shall try to provide a summary, simplified so far as is possible to meet the needs of this judgment.

The fundamental principle is that any expenditure of public funds must be authorised by statute: Halsbury’s Laws of England 4^th Edition Reissue Vol. 8(2) Para 230; Auckland Harbour Board v R. [1924] AC 318; R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Limited [1995] 1 WLR 386 – the Pergau Dam Case. The complication arises out of the fact that Parliament authorises expenditure of public funds by two different types of statute. Statutes dealing with a particular area of government make provision for specific expenditure for a defined purpose. We shall here describe these as ‘specific statutes’. The 1992 and the 1999 Acts are examples of such legislation. Such statutes do not, however, of themselves provide Ministers with access to the public funds. Revenues raised by taxation or otherwise are, in general, paid into the Exchequer Account at the Bank of England, where they constitute the Consolidated Fund. Parliamentary authorisation is required for issues from the Consolidated Fund and this is provided each year by the second type of statute. A series of Consolidated Fund Bills are brought before Parliament founded upon supply resolutions. The final such Bill is the Consolidated Fund (Appropriation) Bill, which becomes the Appropriation Act. We shall describe this type of legislation as appropriation legislation. Such legislation authorises the issue to Government Departments of the funds that they have demonstrated that they require to perform their executive functions. In some instances the funds will be required to make the payments already authorised by specific statutes. In other instances the funds will be required to enable the Government Departments to make payments pursuant to prerogative or common law powers which are not the subject of any specific statute. Whether expenditure should be authorised by specific statutes, or merely by appropriation statutes is a question of constitutional law on which the views of the Treasury and the Public Accounts Committee have differed. Footnote 4 to the paragraph of Halsbury’s Laws to which we have already referred records the following exchange:

“In 1932 the Committee of Public Accounts (as to which see para 719 post) and the Treasury reached a concordat concerning the requirement to obtain specific legislative authority for expenditure. The Committee of Public Accounts stated that ‘where it is desired that continuing functions should be exercised by a government department, particularly where such functions may involve financial liabilities extending beyond a given financial year, it is proper, subject to certain recognised exceptions, that the powers and duties to be exercised should be defined by specific statute.’ The Treasury said that ‘while they think the Executive government must continue to be allowed a certain measure of discretion in asking Parliament to exercise a power which undoubtedly belongs to it, they agree that practice should normally accord with the view expressed by the Committee [see supra]. The Treasury will, for their part, continue to aim at observance of this principle.’ Later in 1932 the Treasury restated their view that ‘while it is competent to Parliament, by means of an annual vote embodied in the Appropriation Acts, in effect to extend powers specifically limited by statute, constitutional propriety requires that such extensions should be regularised at the earliest possible date by amending legislation, unless they are of a purely emergency or non-continuing character.’”

On 2 November 1945 Mr Granville Ram, First Parliamentary Counsel, produced a Memorandum setting out what has become known as ‘The Ram Doctrine’ and which is, we understand, still treated by Ministers as setting out the position in respect of the question of ‘how far legislation is necessary to authorise any extension of the existing powers of a Government Department?’ Mr Ram commented that it was necessary to draw a sharp distinction between what was legally possible and what was permissible having regard to established practice. He referred to the exchange of views in 1932, to which we have referred above. He reached the following conclusions:

“a.

Legislation is not legally necessary to authorise an extension of the existing powers of a Government Department except where such an extension is precluded by a previous statute either expressly or by necessary implication.

b.

If the extended powers involve an annual charge extended over a period of years legislation though not required by law, is required by established practice formally recorded in the transactions between the Public Accounts Committee and the Treasury.”

Where a Minister proposes to make a payment that has been authorised by a specific statute the Court can properly review his decision to see whether, on true interpretation of the statute, the payment falls within its authorisation. If it does not, the decision to make the payment will be unlawful – see the Pergau Dam Case.

Where a Minister proposes to make payments in circumstances where this conflicts with the intention of Parliament, as manifested in a specific statute, the decision will be unlawful as an abuse of power, even, it seems, if Parliament has authorised the issue of funds for that purpose in an appropriation statute – see R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 513 at p.554H.

We turn to consider whether it would conflict with the intention of Parliament, as expressed in the 1992 and 1999 Acts to introduce a scheme of making extra statutory payments to widowers to match those payable to widows. Before the HRA came into force we are in no doubt that it would have done. As we have shown it has been, at the least, an established practice for more than half a century that the exercise of powers requiring an annual charge over a period of years should receive specific statutory authorisation. The 1992 and 1999 Acts constituted such authorisation in relation to bereavement benefits. It seems to us plainly implicit that Parliament intended the express statutory provisions for payment of benefits to widows to occupy the entire field of entitlement to payment of benefits as a result of the death of a spouse. We endorse the submission made in Mr Sales’ skeleton argument that Parliament made ‘a deliberate choice to confine widow’s benefits to widows (with no entitlement to widowers)’. In these circumstances, prior to 2 October 2000, it would have been an abuse of power for the Minister to introduce a scheme of making matching extra-statutory payments to widowers.

Does the introduction of the HRA make a difference? In our judgment it does. Section 3 of the Act requires that ‘so far as it is possible to do so, primary legislation…must be read and given effect in a way which is compatible with the Convention rights’. This statutory requirement enforces the conclusion that we would have reached, even had the Act not contained this provision. Once the HRA came into effect it seems to us that its requirements altered the restraint upon the Secretary of State which resulted from the principle in AG v De Keyser’s Royal Hotel. There is a presumption that Parliament does not intend legislation to infringe the Convention. Acts of Parliament should be read, in so far as possible, as not precluding common law or prerogative powers of the Crown to take any action that may be necessary to prevent infringement of Convention rights. In so far as the HRA placed upon the Secretary of State an obligation to make extra statutory payments, no constitutional impropriety or illegality could be involved in his putting in place a scheme to give effect to that obligation and, if necessary, seeking from Parliament appropriation of funds to implement the scheme.

It follows that neither section 6(2)(a) nor section 6(2)(b) affords the Secretary of State a defence to the claim that by failing to make extra-statutory payments to the claimants he infringed Article 14 of the Convention. It remains to consider whether the HRA required the Secretary of State to make the payments claimed by the appellants and, if it did, the relief that should be accorded by this Court. This turns upon the answers to be given to the last two issues

The discrimination between the appellants and widows occurred, in large measure, prior to 2 October 2000, when the HRA came into force. Mr Hooper was denied payments equivalent to Widow’s Payment and WMA in 1997. Mr Withey was denied payments in respect of Widow’s Payment and WMA in 1997, and again denied payments equivalent to WMA in August 2000. Mr Martin was denied payments equivalent to Widow’s Payment and WMA after 2 October 2000, but his claims relate back to his wife’s death on 11 September 2000. Mr Naylor claimed payments equivalent to Widow’s Pension on 14 September 2000, and thus the relevant period in respect of which he claims extends back 3 months before that date.

No claim can be founded on the HRA in respect of those incidents of discrimination, which occurred before the Act came into force. This is because section 22(4) of the Act provides that no proceedings may be brought under section 7(1)(a) of the Act in relation to any act or failure to act which occurred before the Act came into force.

Before Moses J., counsel for Mr Hooper argued that Mr Hooper’s Strasbourg discrimination claim could properly embrace failure to settle that part of his claim which related to discrimination before 2 October 2000. Moses J rejected this contention on the ground that the decision not to extend a friendly settlement to Mr Hooper was taken before 2 October 2000. We question whether he was correct to do so. Had the Strasbourg discrimination claim been well founded, the duty under the HRA not to discriminate between Strasbourg claimants and others would have arisen when that Act came into force on 2 October 2000. We do not see how a refusal before that date by the Secretary of State to settle Mr Hooper’s claim could have precluded a duty on the part of the Secretary of State not to discriminate against Mr Hooper once the HRA came into force, nor Mr Hooper’s right to bring proceedings in relation to breach of that duty. The fact that the discrimination complained of related, in part, to events before 2 October 2000 would not have invalidated the claim in whole or in part. We have, however, as did Moses J., ruled the Strasbourg discrimination claim invalid. It is for this reason that no claims lie in relation to discrimination which occurred prior to 2 October 2000.

This leaves for consideration those incidents of discrimination which have occurred since 2 October 2000. Mr Goudie submitted, in our view correctly, that claimants, who had constituted themselves ‘victims’ under the Convention by claiming before the HRA came into force, were in a position to bring proceedings under the Act in respect of continuing discrimination without the need to repeat their claims. We identify these as follows:

If and insofar as making these payments would have prevented breaches of Article 14 coupled with Article 8 of the Convention, we have held that the Secretary of State had power to make the payments. By failing to make such payments the Secretary of State acted in a way incompatible with the appellants’ Convention rights. By reason of the provisions of section 6(1) of the HRA we see no escape from the conclusion that he acted unlawfully in failing to make these payments. We put the matter in this way because, although extra-statutory payments would have prevented discrimination against widowers, we do not consider that it was irrational for the Secretary of State to decline to adopt this course. If Parliament confers on one class a benefit for which there is no rational justification it may make more sense to leave those who do not receive that benefit to seek such remedy as the law allows rather than to make to them also payments for which there is no rational justification. This is a matter to which we shall return when we consider the ninth issue.

The appellants seek a mandatory order that the Secretary of State make to them the extra-statutory payments which he has so far declined to make. Alternatively they claim damages for his breach of section 6(1) of the HRA in failing to make those payments. Widows who were entitled to pensions prior to 9 April 2001 remain entitled to receive these. Thus Mr Naylor has a continuing claim; the claims of the other appellants all relate to periods prior to 9 April 2001, when the new regime came into effect. We consider that, if the appellants have claims to monetary compensation in respect of their failure to receive payments during these periods, this should be by way of damages for breach of the HRA. Section 8 (1) of the HRA entitles us to grant such relief or remedy or make such order, within our powers, as we consider just and appropriate. We would not consider it just or appropriate to make a mandatory order that the Secretary of State make the payments sought in circumstances where his failure to do so would not sound in damages under the Act. Thus the issue at this stage is the extent to which, if at all, the appellants are entitled to damages.

Section 8(3) of the Act precludes this Court from awarding damages to the appellants unless we are satisfied that such awards are necessary in order to afford them just satisfaction. In considering this question we are required to take into account the principles applied by the Strasbourg Court. This was an area of the case in respect of which we had to seek assistance from counsel on the second hearing, as they had made scarcely any submissions in relation to ‘just satisfaction’ at the first hearing.

The appellants’ case has a beguiling simplicity. The breaches of the HRA of which they complain lie in failing to make payments to them equivalent to the payments received by widows. They have thus suffered pecuniary loss in the amount of the payments that they should have received. Just satisfaction requires that they be paid these sums. In addition they claim a modest sum of compensation for the distress that they have been caused by the discrimination itself.

Mr Sales challenged this approach. He submitted that the Strasbourg Court does not always award compensation, even where the applicant has suffered damage which is in principle compensatable. Where the appropriate response to discrimination is to ‘level down’ rather than ‘level up’, it is not appropriate to award compensation on the basis of levelling up.

It is notoriously difficult to deduce clear principles in relation to ‘just satisfaction’ from the Strasbourg jurisprudence – see the comments of the Report of the Law Commission and the Scottish Law Commission on ‘Damages under the Human Rights Act 1998’, Cm 4853, paragraphs 3.4 to 3.15. As that Report states at paragraph 3.19, the general approach is to restore the applicant to the position that he or she would have been in had there not been a breach of Convention rights. Where the breach has caused pecuniary loss, an award of pecuniary compensation is the norm – see paragraphs 3.23 to 3.25 of the Report. The Strasbourg Court has also made awards for non-pecuniary loss in respect of a wide range of intangible injuries – see paragraphs 3.26 and 3.27 of the Report. Particular difficulties arise where the complaint is of breach of Article 14, and decisions on this situation are particularly sparse.

Mr Goudie submitted that we should follow the approach of the Strasbourg Court in Willis v United Kingdom (Application no. 36042/97), in which judgment was delivered on 11 June 2002. Mr Willis’ wife died on 7 June 1996. On 4 November 1996 he applied for benefits equivalent to Widow’s Payment and WMA. His application was refused. He complained of violation of Article 14, taken in conjunction with Article 8 and Article 1 of Protocol No 1. The Government did not resist the claim [under Articles 14 and 8]. The Court found that a violation of Article 14 and Article 1 of Protocol No 1 had occurred. Mr Willis claimed in relation to pecuniary damage a total of £21,804.07 plus interest in respect of loss of Widow’s Payment and WMA, after giving credit for receipt of Invalid Care Allowance and One Parent Benefit that had been paid to him. The Government did not challenge these calculations but resisted the claim for interest. The Court awarded £25,000, inclusive of interest, ‘on an equitable basis’.

For the other three appellants, Mr Cox submitted that the Strasbourg Court adopts the general aim of restoring the applicant to the position that he would have been in had there not been a breach of his Convention rights: Papamichalopoulos v Greece [1995] 21 EHRR 439, at para 34 p.451; Kingsley v UK (2002) 35 EHRR 10, 177 at para 40, p.190; R v Mental Health Tribunal & Secretary of State for Health ex parte KB and Ors [2003] EWHC 193 (Admin) 13 February 2003 per Stanley Burnton J at para 28. He further submitted that in cases where there has been an actual pecuniary loss, which has been clearly caused by the violation, the Court will invariably award damages to compensate for the loss: Kingsley v UK; Law Commission Report: ‘Damages under the Human Rights Act’; Law Com No 266 at para 3.43. An award may be made for future and ongoing loss: Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548 and Smith and Grady v United Kingdom (1999) 29 EHRR 493.

Mr Sales relied particularly on two decisions of the Strasbourg Court. In Goodwin v UK (2002) 35 EHRR 18 the Court found that the UK was in breach of the rights of the applicant (who was a post-operative transsexual) under Articles 8, 12 and 14 in failing to arrange its laws to recognise the applicant’s acquired sexual identity in a range of areas. The applicant had claimed pecuniary damage including a sum of £31,200 in respect of the pension which she had been unable to claim at age 60, as a woman in her acquired sexual identity. The Court recognized that the Government would have to introduce changes in legislation ‘in due course’ to take account of its judgment, and held in relation to Article 41 of the Convention that the finding of violation, with the changes in legislation for the future, could in the circumstances of the case be regarded as constituting just satisfaction.

The circumstances in question included (1) a finding by the Court that the degree of financial detriment suffered, if any, was not clear cut and (2) a finding by the Court that the lack of legal recognition of the gender re-assignment of post-operative transsexuals lay at the heart of the complaint. Having regard to these factors, we do not find this decision of assistance in resolving the issue of just satisfaction in the present case.

More pertinent is the other decision relied upon by Mr Sales. In Van Raalte v The Netherlands (1997) 24 EHRR 503 the applicant was an unmarried childless man over the age of 45. Dutch legislation provided for an exemption for unmarried childless women over the age of 45 from the obligation to pay contributions under the General Child Benefits Act. There was no similar exemption for men. The Court held that Article 14 of the Convention taken together with Article 1 of Protocol No. 1 had been violated. However, the Court rejected the applicant’s request that he should be awarded compensation for pecuniary damage in the amount of the contribution which he had paid between 1985 and 1988. The Dutch Government stated that:

“…. had there not been the difference in treatment complained of, men and women would have been equally liable to pay contributions under the General Child Benefits Act, so that the applicant would have had to pay them in any case” (para 48)

The Court held at paragraph 50:

“… the finding of a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 does not entitle the applicant to retrospective exemption from contributions under the scheme in question. Accordingly the applicant’s claim for pecuniary damage has not been substantiated.”

Under the relevant legislation everyone had to contribute to the cost of providing child benefits, whether or not they had children, with the exception of childless women over 45. Part of the rationale of this was that to make such women contribute to the cost of providing child benefits would rub salt in the wound of being childless. The Court indicated its doubts about whether a desire to spare the feelings of such women could be a legitimate aim. We read the passage of its judgment quoted above as indicating the Court’s acceptance that the breach of Article 14 consisted in granting the allowance to women rather than in not also granting it to men so that it was not appropriate to award pecuniary compensation.

With the benefit of these authorities, we have reached the following conclusions. This appeal is concerned with the fruits of national insurance contributions. It is concerned with payments designed to mitigate particular adverse financial consequences to widows of the death of the husband who paid the contributions. Where those adverse financial consequences are also suffered by widowers who have lost wives who paid national insurance contributions, it is manifestly discriminatory and unfair that the widowers should not also receive similar payments to mitigate those consequences.

This is the position as far as Widow’s Payment is concerned. The payment of a lump sum had and has rational justification, having regard to the additional financial demands attendant on that event. The justification applies, however, equally in the case of the death of a wife. This is now recognised by the payment of bereavement payments to widows and widowers alike. The discrimination that existed during the relevant transitional period – 2 October 2000 to 9 April 2001 – can properly be said to have resulted in the failure of widowers to receive payments to which, in justice, they should have been entitled. For this reason we consider that Mr Martin, and any others in his position, should receive damages of £1,000, together with interest, by way of just satisfaction.

WMA was paid in recognition of the burden shouldered by a widow, who had to bring up children without the support of a husband. That, however, is a burden which falls upon a parent whose spouse dies, be the parent husband or wife. That fact is now recognised by the entitlement of both widows and widowers with dependent children to WPA. On the face of it, the discrimination in the transitional period which saw WPA being paid to widows but not to widowers can properly be said to have resulted in a failure on the part of widowers to receive payments to which, in justice, they should have been entitled. The picture is not, however, as simple as this so far as the appellants before us are concerned.

For widows who were earning little or nothing, entitlement to WMA and, indeed to Widow’s Pension was an irrelevance. This was because other social security benefits were provided – in particular Income Support – to the extent necessary to raise the widow’s total income to a pre-calculated minimum, which exceeded both WMA and Widow’s Pension. Receipt of WMA simply reduced the amount which would otherwise have been received by way of Income Support, so that the widow’s income remained the same.

Before Moses J Mr Sales’ skeleton argument asserted that each of Mr Hooper, Mr Withey and Mr Martin were in receipt of Income Support in excess of WMA. Had they been paid sums equivalent to WMA this would not have affected their total income. We understand that these assertions are accepted. In these circumstances, those three appellants have not demonstrated that the discrimination of which they complain in respect of WMA has caused them any pecuniary loss, so the principle of just satisfaction does not require any award in respect of pecuniary loss. Indeed it might have led the Secretary of State to question whether, in truth, they have been discriminated against by the refusal to pay them WMA. They have received the same amount of social security benefits that they would have received had they been widows in the same situation. It is only the form in which they have received those benefits that differs.

Mr Cox, on behalf of Messrs Withey, Naylor and Martin, argued that receipt of WMA is more advantageous than receipt of Income Support in that WMA is paid regardless of income, whereas if a person in receipt of Income Support works, Income Support is reduced by the amount that is earned. None of these three appellants has established that he was worse off as a result of receiving Income Support in place of WMA and, accordingly, we see no basis for an award of pecuniary compensation. Had the claimants demonstrated that they were worse off as a result of failure to receive the equivalent of WMA we would, to that extent, have held them entitled to damages.

We turn to the question of whether the principle of just satisfaction entitles Mr Naylor to an award for failing to receive the equivalent of Widow’s Pension. Had he been a widow he would have been entitled to this until reaching the age of 65, so he claims not merely in respect of past receipt but in respect of his failure to receive payments in the future. As we understand the position Mr Naylor has been receiving Income Support in a sum exceeding the equivalent of Widow’s Pension, but, for the moment, we shall put that fact to one side and consider this question as one of principle.

We have held that the justification for paying pensions to widows had ceased and should have been discontinued by 2000. It was not, in fact, discontinued until 9 April 2001. Furthermore, those who became entitled to Widow’s Pension before that date remained entitled to them thereafter. Mr Naylor argues that he should have been treated in the same way and should, under the principle of just satisfaction, be compensated for the fact that he has not been.

In 1999, before the HRA came into force, Parliament had passed an Act which would abolish Widow’s Pension with effect from 9 April 2001 but, as from that date, grant a bereavement allowance for a period of 52 weeks to widows and widowers alike. This reflected the fact that there had ceased to be justification for paying pensions to widows. It also reflected the fact that there was no justification for paying a similar pension to widowers either. The fact that widows over 45 enjoyed a right to a pension until reaching the age of 65 was recognised as an anomaly. Parliament decided to allow a transitional period until 9 April 2001 before bringing in the new regime and to allow those in receipt of Widow’s Pension to continue to receive it, but it does not follow from this that there was any justification for making equivalent payments to widowers. To have done so would merely have increased the size of those to whom anomalous payments were being made. This would not have achieved any legitimate aim.

For these reasons we do not consider that the principle of just satisfaction entitles Mr Naylor to extra-statutory payments equivalent to Widow’s Pension either in respect of the period from 2 October 2000 to 9 April 2001 or thereafter. The appropriate course in this case is that adopted by the Strasbourg Court in Van Raalte v The Netherlands.

We have considered whether Mr Naylor is nonetheless entitled, by way of just satisfaction, to payment equivalent to bereavement payment, on the ground that this was introduced for widows and widowers alike in place of Widow’s Pension. We have decided that he is not. We do not consider that this payment to both sexes for a maximum of 52 weeks, can properly be considered as similar in nature to pension rights that were previously enjoyed by widows until reaching the age of 65. They are part of a new, and very different regime. Furthermore, had such payment been made to Mr Naylor, it would simply have reduced, by the same amount, the income support that he received, so that he is not out of pocket as a result of not receiving such payment.

We do not consider that the decision in Willis requires us to reach a decision to the contrary. Section 2 of the HRA requires us to take this decision into account, but it carries little weight. In the first place that case did not concern Widow’s Pension. In the second place the United Kingdom did not challenge its obligation to pay pecuniary compensation in that case, other than interest, so that the principle of just satisfaction was not in issue. We have been required by the HRA to give consideration to that principle.

All the claimants argued that they should be awarded by way of damages additional sums in respect of injury to their feelings caused by the obduracy of the Secretary of State in discriminating against them, relying on a number of cases in which Strasbourg had made such awards in cases of sex discrimination. These claims were parasitic on the other claims for damages and, in particular, the Strasbourg discrimination claims. For this reason alone they fail in all cases save that of Mr Martin. Quite apart from that there is no comparison between the nature of the discrimination complained of in this case and that which had occurred in the cases of sex discrimination relied upon. We do not consider that the principle of just satisfaction requires any award to Mr Martin under this head.

For these reasons, with the exception of a payment of £1,000 to Mr Martin, we reject the claims for money payments.

We invite submissions from counsel as to the form of order that should follow from our judgment.