COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Moses
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE RIX
| THE QUEEN ON THE APPLICATION OF HOOPER, WITHEY, NAYLOR AND MARTIN
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
(Formerly the Secretary of State for Social Security)
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Geoffrey Cox, QC and Mr Edward Risso-Gill (instructed by Royds Treadwell for the 2nd, 3rd & 4th Appellants)
Mr Neil Garnham, QC, Mr Philip Sales and Miss Jemima Stratford (instructed by The Solicitor to the Department for Work and Pensions)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR
This is the judgment of the Court. The hearing of the appeal began on 11 October 2002, but the Court found it necessary to invite the parties to return for further argument, so that the hearing was not concluded until 14 March 2003. Before Moses J Mr Philip Sales appeared for the Secretary of State for Work and Pensions. At the October hearing Mr Neil Garnham, QC, replaced him, but Mr Sales appeared for the Secretary of State at the March hearing.
The appellants and the legislation under which they claim
MESSRS. HOOPER, WITHEY, MARTIN and NAYLOR's APPEAL
The new regime
"Everyone has the right to respect for his private and family life, his home and his correspondence."
"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."
"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."
The Human Rights Act 1998
"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."
"(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"
"(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."
"(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)."
The relief claimed and the issues raised
The first issue
"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  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."
"In any Act, unless the contrary intention appears, -
words importing the masculine gender include the feminine; words importing the feminine gender include the masculine."
The second issue
"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 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 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."
"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."
i) when, if at all, did the appellant make the claim that was necessary to render him a victim?
ii) in respect of what period of deprivation of benefits is the appellant entitled to found a claim under the HRA?
iii) when did time start to run for the purpose of the 3 month period for claiming judicial review?
The second question is one that we shall consider as the eighth issue. No point has been taken that any application for judicial review was out of time. Thus, at this stage, we shall limit our consideration to the question of victim status.
"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…"
"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."
The third issue
"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.
"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."
"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."
"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."
"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."
"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."
"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."
"…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.
Table 1 - Older women compared to younger women
% of women economically active
Table 2 - Older men compared to older women
% of older men and women economically active
|Men aged 50-64||71.5%||72.5%|
|Women aged 50-59||63.2%||65.9%|
Table 3 - % of men and women economically active
Table 4 - Part time working by men and women
Table 5 - Comparison of economically inactive men and women looking after family/home
Table 7 - Comparison of economic activity of mothers by age of child
|Age of child||1995||2000|
|5 to 10 years||71%||73.6%|
|11 to 15 years||77%||78.3%|
|16 to 18 years||81.8%||80%|
"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)
The fourth issue
"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)".
"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."
"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."
The fifth issue
Article 14 claims
"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.
"(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 treatment of Article 14 by Moses J.
"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."
The Strasbourg discrimination issue as presented before us
The unlawful discrimination is between two classes of those who became 'victims' of discrimination by making claims for benefit. One class consists of those seeking compensation by bringing claims at Strasbourg whose claims have been ruled admissible. The other class consists of those who have not made claims at Strasbourg. The policy favours the former, by settling their claims, whereas no such accommodation is offered to the latter. Before 2 October 2000 the latter had no right to claim that this discrimination infringed Article 14. That right arose when the State failed to change its policy on 2 October 2000. At that point Mr Hooper and those in like position acquired a right to complain that this continuing discrimination infringed Article 14. Claimants at Strasbourg have been granted settlements which compensate them both for their failure to receive benefits before 2 October 2000 and for their failure to receive benefits during the period from 2 October 2000 to 9 April 2001, when the new regime came into force. In order to avoid discrimination the State is bound to make ex gratia payments of like amounts to victims who have not brought claims at Strasbourg.
"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…"
The sixth issue
"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."
"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."
The seventh issue
i) It is unlawful for a public authority to act in a way which is incompatible with a Convention right – section 6(1) HRA.
ii) 'Act' includes 'failure to act' – section 6 (6) HRA.
iii) Paying benefits to widows who had claimed payment, but not to widowers who had claimed payment, was discrimination which was incompatible with Convention rights.
iv) Had the state made extra-statutory payments to widowers equivalent to the benefits paid to widows, there would have been no discrimination and therefore no violation of the Convention.
v) It follows that it was and is unlawful for the state to refrain from making those extra-statutory payments.
vi) A mandatory order should be made requiring the state to make the extra-statutory payments in question.
vii) Alternatively, the appellants are entitled to damages for the breach of the Secretary of State's duty to make extra-statutory payments.
"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."
"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)."
i) Section 6(2)(a) provides an authority with a defence when a statute requires the authority to Act in a way which is incompatible with a Convention right; Section 6(2)(b) provides an authority with a defence where a statute confers on an authority a power which, if exercised, will necessarily involve infringement of a Convention right.
ii) The 1992 and 1999 Acts, on their true construction, leave unfettered the Secretary of State's common law power to pay benefits to widowers if he chooses so to do.
iii) Each Act might, for the avoidance of doubt, have provided: 'this Act is without prejudice to the Secretary of State's common law power to pay benefits to widowers, if he chooses so to do;'. The position would still have been precisely the same as ii).
iv) Each Act might have stated: '(i) The Secretary of State may pay benefits to widowers if he chooses so to do; (ii) The Secretary of State may refrain from making payments to widowers if he chooses so to do;'. The position would still have been precisely the same as in ii) and iii).
v) Had the Acts expressly authorised the Secretary of State to refrain from paying benefits to widowers, the exercise of that statutory power would necessarily have involved infringing their Convention rights. In such circumstances section 6(2)(b) would have provided him with a defence.
vi) Parliament cannot have intended that, by leaving implicit what could have been expressed, the Secretary of State's discretion should be fettered by the HRA.
Does the Secretary of State have a common law power to pay benefits to widowers?
"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."
"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."
"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…'
"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  AC 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.'"
"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.'"
"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."
The eighth issue
i) Failure to accept Mr Martin's demand for payment equivalent to Widow's Payment.
ii) Failure to make payments equivalent to WMA to Hooper, Withey and Martin.
iii) Failure to make payments equivalent to Widow's Pension to Mr Naylor.
The ninth issue
"…. 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."
Social Security Contributions and Benefits Act 1992 c.4
Benefits for widows and widowers
36.—(1) A woman who has been widowed shall be entitled to a widow's payment of the amount specified in Schedule 4, Part II if—
(a) she was under pensionable age at the time when her late husband died, or he was then not entitled to a Category A retirement pension under section 44 below; and
(b) her late husband satisfied the contribution condition for a widow's payment specified in Schedule 3, Part I, paragraph 4.
(2) The payment shall not be payable to a widow if she and a man to whom she is not married are living together as husband and wife at the time of her husband's death.
(3) A widow's payment is payable only in cases where the husband dies on or after 11th April 1988 (the coming into force of section 36(1) of the 1986 Act, which introduced the widow's payment by making provision corresponding to this section).
Widowed mother's allowance.
37.—(1) A woman who has been widowed shall be entitled to a widowed mother's allowance at the rate determined in accordance with section 39 below if her late husband satisfied the contribution conditions for a widowed mother's allowance specified in Schedule 3, Part I, paragraph 5 and either—
(a) the woman is entitled to child benefit in respect of a child falling within subsection (2) below; or
(b) the woman is pregnant by her late husband; or
(c) if the woman and her late husband were residing together immediately before the time of his death, the woman is pregnant as the result of being artificially inseminated before that time with the semen of some person other than her husband, or as the result of the placing in her before that time of an embryo, of an egg in the process of fertilisation, or of sperm and eggs.
(2) A child falls within this subsection if one of the conditions specified in section 81(2) below is for the time being satisfied with respect to the child and the child is either—
(a) a son or daughter of the woman and her late husband; or
(b) a child in respect of whom her late husband was immediately before his death entitled to child benefit; or
(c) if the woman and her late husband were residing together immediately before his death, a child in respect of whom she was then entitled to child benefit.
(3) The widow shall not be entitled to the allowance for any period after she remarries, but, subject to that, she shall continue to be entitled to it for any period throughout which she satisfies the requirements of subsection (1)(a), (b) or (c) above.
(4) A widowed mother's allowance shall not be payable—
(a) for any period falling before the day on which the widow's entitlement is to be regarded as commencing for that purpose by virtue of section 5(1)(k) of the Administration Act; or
(b) for any period during which she and a man to whom she is not married are living together as husband and wife.
38.—(1) A woman who has been widowed shall be entitled to a widow's pension at the rate determined in accordance with section 39 below if her late husband satisfied the contribution conditions for a widow's pension specified in Schedule 3, Part I, paragraph 5 and either—
(a) she was, at the husband's death, over the age of 45 but under the age of 65; or
(b) she ceased to be entitled to a widowed mother's allowance at a time when she was over the age of 45 but under the age of 65.
(2) The widow shall not be entitled to the pension for any period after she remarries, but, subject to that, she shall continue to be entitled to it until she attains the age of 65.
(3) A widow's pension shall not be payable—
(a) for any period falling before the day on which the widow's entitlement is to be regarded as commencing for that purpose by virtue of section 5(1)(k) of the Administration Act;
(b) for any period for which she is entitled to a widowed mother's allowance; or
(c) for any period during which she and a man to whom she is not married are living together as husband and wife.
(4) In the case of a widow whose late husband died before 11th April 1988 and who either—
(a) was over the age of 40 but under the age of 55 at the time of her husband's death; or
(b) is over the age of 40 but under the age of 55 at the time when she ceases to be entitled to a widowed mother's allowance,
subsection (1) above shall have effect as if for "45" there were substituted "40".
Rate of widowed mother's allowance and widow's pension.
39.—(1) The weekly rate of—
(a) a widowed mother's allowance,
(b) a widow's pension,
shall be determined in accordance with the provisions of sections 44 and 45 below as they apply in the case of a Category A retirement pension, but subject, in particular, to the following provisions of this section and section 46(2) below.
(2) In the application of sections 44 and 45 below by virtue of subsection (1) above—
(a) where the woman's husband was over pensionable age when he died, references in those sections to the pensioner shall be taken as references to the husband, and
(b) where the husband was under pensionable age when he died, references in those sections to the pensioner and the tax year in which he attained pensionable age shall be taken as references to the husband and the tax year in which he died.
(3) In the case of a woman whose husband dies after 5th April 2000, the additional pension falling to be calculated under sections 44 and 45 below by virtue of subsection (1) above shall (before making any reduction required by subsection (4) below) be one half of the amount which it would be apart from this subsection.
(4) Where a widow's pension is payable to a woman who was under the age of 55 at the time when the applicable qualifying condition was fulfilled, the weekly rate of the pension shall be reduced by 7 per cent. of what it would be apart from this subsection multiplied by the number of years by which her age at that time was less than 55 (any fraction of a year being counted as a year).
(5) For the purposes of subsection (4) above, the time when the applicable qualifying condition was fulfilled is the time when the woman's late husband died or, as the case may be, the time when she ceased to be entitled to a widowed mother's allowance.
(6) In the case of a widow whose late husband died before 11th April 1988 and who either—
(a) was over the age of 40 but under the age of 55 at the time of her husband's death; or
(b) is over the age of 40 but under the age of 55 at the time when she ceases to be entitled to a widowed mother's allowance,
subsection (4) above shall have effect as if for "55" there were substituted "50", in both places where it occurs.
Welfare Reform and Pensions Act 1999 c.30
Benefits for widows and widowers
54. – (1) For section 36 of the Contributions and Benefits Act there shall be substituted-
Ne New allowances for bereaved spouses
"WidoWidowed parent's allowance
Bereavement allowance where no dependent children
|36. - (1) A person whose spouse dies on or after the appointed day shall be entitled to a bereavement payment if-
(a) either that person was under pensionable age at the time when the spouse died or the spouse was then not entitled to a Category A retirement pension under section 44 below; and
(b) the spouse satisfied the contribution condition for a bereavement payment specified in Schedule 3, Part I, paragraph 4.
(2) A bereavement payment shall not be payable to a person if that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse's death.
(3) In this section "the appointed day" means the day appointed for the coming into force of sections 54 to 56 of the Welfare Reform and Pensions Act 1999."
(2) In Schedule 4 to the Contributions and Benefits Act (rates of benefits etc.), for Part II there shall be substituted-
Bereavement payment £2,000.00."
55. - (1) After section 36 of the Contributions and Benefits Act there shall be inserted-
"Cases in which sections 37 to 41 apply. 36A. - (1) Sections 37 to 39 and section 40 below apply only in cases where a woman's husband has died before the appointed day, and section 41 below applies only in cases where a man's wife has died before that day.
(2) Sections 39A to 39C below apply in cases where a person's spouse dies on or after the appointed day, but section 39A also applies (in accordance with subsection (1)(b) of that section) in cases where a man's wife has died before that day.
(3) In this section, and in sections 39A and 39B below, "the appointed day" means the day appointed for the coming into force of sections 54 to 56 of the Welfare Reform and Pensions Act 1999."
(2) After section 39 of the Contributions and Benefits Act there shall be inserted-
39A. - (1) This section applies where-
(a) a person whose spouse dies on or after the appointed day is under pensionable age at the time of the spouse's death, or
(b) a man whose wife died before the appointed day-
(i) has not remarried before that day, and
(ii) is under pensionable age on that day.
(2) The surviving spouse shall be entitled to a widowed parent's allowance at the rate determined in accordance with section 39C below if the deceased spouse satisfied the contribution conditions for a widowed parent's allowance specified in Schedule 3, Part I, paragraph 5 and-
(a) the surviving spouse is entitled to child benefit in respect of a child falling within subsection (3) below; or
(b) the surviving spouse is a woman who either-
(i) is pregnant by her late husband, or
(ii) if she and he were residing together immediately before the time of his death, is pregnant in circumstances falling within section 37(1)(c) above.
(3) A child falls within this subsection if one of the conditions specified in section 81(2) below is for the time being satisfied with respect to the child and the child is either-
(a) a son or daughter of the surviving spouse and the deceased spouse; or
(b) a child in respect of whom the deceased spouse was immediately before his or her death entitled to child benefit; or
(c) if the surviving spouse and the deceased spouse were residing together immediately before his or her death, a child in respect of whom the surviving spouse was then entitled to child benefit.
(4) The surviving spouse shall not be entitled to the allowance for any period after she or he remarries, but, subject to that, the surviving spouse shall continue to be entitled to it for any period throughout which she or he-
(a) satisfies the requirements of subsection (2)(a) or (b) above; and
(b) is under pensionable age.
(5) A widowed parent's allowance shall not be payable-
(a) for any period falling before the day on which the surviving spouse's entitlement is to be regarded as commencing by virtue of section 5(1)(k) of the Administration Act; or
(b) for any period during which the surviving spouse and a person of the opposite sex to whom she or he is not married are living together as husband and wife.
39B. - (1) This section applies where a person whose spouse dies on or after the appointed day is over the age of 45 but under pensionable age at the spouse's death.
(2) The surviving spouse shall be entitled to a bereavement allowance at the rate determined in accordance with section 39C below if the deceased spouse satisfied the contribution conditions for a bereavement allowance specified in Schedule 3, Part I, paragraph 5.
(3) A bereavement allowance shall be payable for not more than 52 weeks beginning with the date of the spouse's death or (if later) the day on which the surviving spouse's entitlement is to be regarded as commencing by virtue of section 5(1)(k) of the Administration Act.
(4) The surviving spouse shall not be entitled to the allowance for any period after she or he remarries, but, subject to that, the surviving spouse shall continue to be entitled to it until-
(a) she or he attains pensionable age, or
(b) the period of 52 weeks mentioned in subsection (3) above expires,
whichever happens first.
(5) The allowance shall not be payable-
(a) for any period for which the surviving spouse is entitled to a widowed parent's allowance; or
(b) for any period during which the surviving spouse and a person of the opposite sex to whom she or he is not married are living together as husband and wife."