England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: Pensions Appeal Tribunal
Mr J Mesher

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2009

Lord Justice Hooper:

Introduction

1. The appeal concerns the eligibility to a War Pension of an unmarried partner of a member of the armed forces whose death is due to service but in circumstances where the death was caused by an act or omission which occurred before 6^th April 2005. Under the relevant Order in Council, an unmarried partner of a member of the armed forces whose death is due to service but in circumstances where the death was caused by an act or omission which occurred before 6^th April 2005, is not eligible to a War Pension except in circumstances which are so rare that they may almost be ignored. If the death was caused by an act or omission which occurred on or after that date, then, in general terms, the unmarried partner would be entitled to a War Pension.
2. I shall use in this judgment the expression "War Pension", albeit that it is not entirely accurate, in that the death need not to have been caused by service in time of war.
3. The refusal on the part of the Secretary of State to award a War Pension to the appellant as the unmarried partner of a member of the armed forces whose death is due to service but in circumstances where the death was caused by an act or omission which occurred before 6^th April 2005 is said to be incompatible with the appellant's rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms [the "Convention"] and thus unlawful under section 6 of the Human Rights Act 1998 [the "HRA"].

The facts

4. Lieutenant Commander K was born in 1936. He served in the Royal Navy from 1 May 1952 to 22 July 1988, having joined the service at the age of 16. The appellant and K began a relationship in 1976. They never married and they had no children. After leaving the service K developed mesothelioma caused by exposure to asbestos in the 1950s during his service in the Royal Navy. He died on January 4 2004.
5. In the words of the appellant:

"The relationship began in February 1976. From 1985 onwards it became an unbroken and true partnership and we were treated by all family and friends as though married.

From 1985 [K] provided considerable financial support. After September 2001 I was not working and lived as a dependent with him at our home in Hitchin where I cared for him and nursed him during the final stages of his cancer."

6. Just over a month before his death the appellant telephoned the Veterans' Agency welfare office in order to ascertain the legal position with regard to pensions as K was very seriously ill and had been admitted to the local hospice. Unfortunately she received no reply to her query until after the funeral. The reply did no more than set out the provisions of Article 30 of the relevant Order to which I turn below. The appellant states:

"It took the Veterans' Agency almost seven weeks to provide nothing more than the statutory information, when it had been made quite clear that time was of the essence. This is so far outside their standards of performance that it constitutes a breach of their duty to [K] and myself. Had the information been provided expeditiously, it would have been possible for us to marry."

7. If K's employer had been in the private sector then, so Ms Carss-Frisk QC told us, the employer would have been liable in negligence for the death of K. Ms Lieven QC did not dispute that. Such a claim could not be made by K's estate because of Section 10 of the Crown Proceedings Act of 1947. That section excluded liability in tort in cases involving the armed services. It was repealed with effect from 15 May 1987 but not in relation to anything suffered by a person in consequence of an act or omission before that date. The House of Lords has held section 10 to be compatible with Article 6 of the ECHR: see Matthews v. Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163, a conclusion with which the ECtHR agreed in Roche v. UK [2008] ECHR 926; Application no. 32555/96, 19 October 2005.

The history of the claim

8. The appellant sought a War Pension under the provisions of the Naval, Military and Air Force etc (Disablement and Death) Service Pensions Order 1983 [the "1983 Order"]. Her claim was rejected on 29 April 2004 because she did not meet the conditions of either Articles 29 or 30. That rejection was upheld by the Pensions Appeal Tribunal and then on a further appeal by Mr J Mesher the Pensions Appeal Commissioner in October 2006. The appellant appeals to this court with the leave of Waller LJ. Many of the issues canvassed by the Commissioner are, fortunately for us, no longer live issues.
9. The appeal, originally listed for one day on 11 February 2008, was adjourned at the end of that day. The appeal was listed for 1 May 2008 but, at the request of the respondent was adjourned for further enquiries to be made. The hearing resumed at the end of October and was followed by further written submissions in November.

The value of the claim

10. On the last day of the hearing, we learnt that the appellant, if she succeeded, would be paid a pension of about £5,600 - £5,700 per annum, tax free.

The challenge - in outline

11. It is submitted on behalf of the appellant that, in accordance with the HRA, those Articles should be interpreted so as to allow her a War Pension. To deny her a pension is incompatible with her rights under the Convention and in particular with her rights under Article 14 coupled with Article 1 of the First Protocol. If that is not possible then a declaration of incompatibility is sought. The relevant order being an Order in Council made under the Royal Prerogative falls within the category of primary legislation for the purposes of the HRA (see section 21 of that Act).

The legislative provisions

12. Article 29 of the 1983 order, as amended, entitles the widow or widower of a member of the armed services whose death is due to service to a pension.
13. Article 30(1) and (2) (also as amended) provide:

"(1) An unmarried dependant who lived as a spouse of a member of the armed forces whose death is due to service may be awarded a pension in accordance with the following provisions of this article.

(2) Where such an unmarried dependant who lived as a spouse has in her charge a child of the member and is in receipt of an allowance awarded in respect of that child under the following provisions of this Part of this Order, a pension may ... be paid to her until she ceases to have that child in her charge or to be in receipt of such allowance."

14. Paragraph 51A of Schedule 4 to the Service Pensions Order (as amended) defines the expression: "unmarried dependant living as a spouse."

"(a) in relation to a member of the armed forces whose disablement is due to service before the commencement of the 1914 World War or after 30 September 1921, a person of the opposite sex wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, where the member is disabled, up to the date of any award under this Order in respect of his disablement and, where the award is reviewed, up to the date of review or, where the member is dead, up to the date of his death."

15. The effect of Article 30 and Paragraph 51A is to restrict to a very narrow group the payment of a War Pension to an unmarried dependant living as a spouse. A pension will be payable only:

a) if the unmarried dependant was wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service until death; and

b) if the unmarried dependant has in her charge a child of the member.

Furthermore the pension payable to the unmarried dependant in these circumstances effectively continues only during the child's childhood. The origin of these provisions dates back to 1919, albeit that the scheme was, at that time, more generous in its definition of unmarried dependants.

16. As to a), the appellant was aged about 8 years old when K joined the Royal Navy. As to b), the appellant and K had no children.
17. We were told that it is not known whether a War Pension has ever been paid to an unmarried dependant. If such a pension has been paid, it has been paid to less than 5 unmarried dependants at any time.
18. Article 67(2) provides that an award under this Order may be reviewed by the Secretary of State at any time if he is satisfied that, amongst other things, the award was made in ignorance of, or a mistake as to the law or there has been a relevant change of circumstances since the award was made. Ms Carss-Frisk submits that even if the original decision in April 2004 was not in breach of the Human Rights Act, the decision became so after the enactment of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 [the "2005 Order"].
19. The 2005 Order made on March 8 2005 and laid before Parliament on 14 March 2005 came into force on 6 April 2005, just under a year after the refusal letter. According to Mr Mesher "proposals for the new scheme, including improvements in benefits for unmarried dependants, have been under discussion for some years and prior to 2004". During the course of the hearing before us, we learnt that the decision to make provision for unmarried partners in the proposed new War Pension scheme coming into force in April 2005 was publicly known from September 2003 (see witness statement of Mr Davies, paragraph 71).
20. Article 9 provides that benefit is payable in accordance with the 2005 Order in respect of a member or former member of the armed forces by reason of his death where the death was caused wholly or partly by service and the cause of the death occurred on or after 6^th April 2005 (there are other criteria with which we are not concerned). The cause of K's death, namely the exposure to asbestos, having occurred in the 1950s, the 2005 Order could not give the appellant the pension which was denied to her under the 1983 Order.
21. Article 21(1) of the 2005 Order provides:

"Benefits payable for the death of a member of the forces or a former member of the forces are:

(a) a survivor's guaranteed income payment payable until death to his surviving spouse, civil partner or his surviving adult dependant."

22. Article 22 defines the expression "surviving adult dependant"

"A person is a surviving adult dependant in relation to a member or former member of the forces if, at the time of the member's death:

(a) the person and the member were cohabiting as partners in a substantial and exclusive relationship;

(b) the member leaves no surviving spouse or civil partner;

(c) the person and the member were not prevented from marrying or forming a civil partnership; and

(d) either the person was financially dependent on the member or they were financially interdependent."

23. Part I of Schedule 1 provides that:

"In deciding whether a relationship of a deceased member of the forces ("the deceased") and the claimant is a substantial relationship, the Secretary of State shall have regard to any evidence which the claimant considers demonstrates that the relationship is substantial and shall in particular have regard to the following examples of evidence which could, either alone or together, indicate that the relationship is substantial."

24. The examples of evidence are then set out. It seems clear that the appellant would have satisfied the criteria for being a surviving adult dependant and, had K in the course of his duties as a member of the armed forces, been exposed to asbestos after April 5 2005, the appellant would have been entitled to a War Pension.
25. The 1983 Order has been repealed following the implementation of Part III of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 [the "2006 Order"] which consolidated the 1983 Order and its various amendments. Article 22 provides that awards under Part III may be made in respect of the death of a member of the armed forces which is due to service before 6 April 2005.
26. Article 23 provides for the award of a pension to the surviving spouse or surviving civil partner of a member of the armed forces whose death is due to service prior to that date.
27. Article 24 is in similar terms to Article 30 of the 1983 Order. It provides that a dependant who lived as a spouse or a dependant who lived as a civil partner of a member of the armed forces whose death is due to service ("dependant") may be awarded a pension if there is a child of the member in the dependant's charge.
28. Paragraph 25(a) of Part II of Schedule 6 defines "dependant living as a spouse" as:

"(a) in relation to a member of the armed forces whose disablement is due to service ... a person of the opposite sex who is not married to, but who is wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, ... where the member is dead, up to the date of his death."

29. Paragraph 26 defines "dependant living as a civil partner":

"in relation to a member of the armed forces whose disablement is due to service ... a person of the same sex who has not formed a civil partnership with, but is wholly or substantially maintained by, the member on a permanent basis throughout the period beginning 6 months prior to the commencement of his service and continuing ... where the member is dead, up to the date of his death ... ."

The Occupational Pension Scheme

30. What was already a complicated case became more complicated when shortly before an adjourned hearing of the appeal listed for May 2008, the respondent served by way of disclosure a Defence Council Instruction dated January 2004, dealing with another kind of armed forces pension scheme, the Occupational Pension scheme. That Instruction and other documents produced for us by Mr Peter Davies of the Ministry of Defence in May 2008, revealed that on 20 March 2003, at the time of the start of the invasion of Iraq and following political pressure, the Government announced in the House of Lords that where a member of the armed forces after that date died in service or by reason of service related to conflict, ex gratia payments equivalent to the benefits payable to spouses under the Occupational Pension scheme would be made to unmarried partners in a substantial relationship. On 15 September 2003 the Government announced that the requirement that the service was related to conflict no longer applied from that date. The necessary detailed changes were made in the January 2004 Defence Council Instruction. The appellant unsuccessfully made an application in 2004 for an Occupational Pension, which was refused, the refusal being in apparent ignorance of these changes. Following disclosure, the appellant's claim for an Occupational Pension was reconsidered, and she now receives an Occupational Pension in the sum of nearly £19,000 per annum. The appellant succeeded only because K had died in January 2004, just over three months after the September 2003 announcement. She succeeded because in the relevant order, the Naval and Marine Pay and Pensions (Non-Effective Benefits and Family Pensions) Order 2002, article 50 gave the Secretary of State a general discretion when the strict requirements were not satisfied, a discretion which he exercised in accordance with the September 15^th announcement.

The two schemes compared

31. Mr Davies, in his witness statement, helped us to understand the differences between the War Pension schemes and the Occupational Pension schemes and the reasons for there being two schemes. My summary of his evidence is far from an exhaustive exposition of the features of the two schemes, but is sufficient, I hope, for the purposes of the appeal.
32. The War Pension schemes benefiting members of the armed forces who are injured or die as a result of service and dates back to Elizabethan times. The War Pension scheme had reached something close to its present form by 1947. It is a no fault scheme developed and run as a quasi social security benefits system. Benefits under the scheme in force at the time of K's death are only paid to spouses (and, as I shall show below, before 2002 only to widows) and adult unmarried dependants in a substantial relationship with the member of the armed forces in the very limited circumstances which I have identified. It has unusual provisions regarding burden and standard of proof. For claims made within 7 years of service release, a claim will succeed unless those responsible for the scheme can show beyond a reasonable doubt that death or illness was not attributable to or aggravated by service. After the seven years the applicant only has to raise a reasonable doubt. As I have said, benefits payable under the new War Pension scheme introduced with effect from 6 April 2005 are payable also to adult unmarried dependants in a substantial relationship, but only in respect of death or injury caused by service after 5 April 2005. It is and was the clear Government intention not to make the benefits under the 2005 War Pension scheme available to unmarried partners available in respect of death which is due to service before 6 April 2005.
33. The Occupational Pension schemes, funded by the State and not by service personnel, are designed to provide a range of benefits equivalent to those earned from a typical employment relationship, including a retirement pension based on length of service and pay. There are two schemes. One is known as AFPS 75, which remains in force for members of the armed forces other than those who joined the forces after April 5 2005. The other is known as AFPS 05 for those who joined the services after April 5 2005 (there exists a right to transfer from 75 to 05). Unlike AFPS 05, AFPS 75 provides for benefits to be payable in the event of injury or death caused by service. In this respect there is an overlap between the 2005 Order and AFPS 75. For members of AFPS 05, benefits payable in the event of injury or death caused by service are paid only under the War Pension scheme. AFPS 05, like the War Pensions Scheme, was not made retrospective in favour of unmarried partners who could not claim the benefit of the March and September 2003 announcements.
34. In a nutshell the appellant claims that the War Pension scheme in force at the time of K's death and which remains in force for all deaths and injuries in service prior to April 6 2005 is discriminatory and should be read down or declared incompatible to the extent to which it discriminates in favour of married partners as against unmarried partners and discriminates in favour of unmarried partners who fulfil the very narrow criteria set out in paragraph above as against all other unmarried partners.

The Convention

35. I turn to the Convention.
36. 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."

37. Article 1 of the First Protocol provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Narrowing of the issues

38. By the time we reached the final two days of the hearing, a number of issues which had earlier been in dispute and about which we had heard argument in detail were no longer in issue as a result of the decision of the House of Lords in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63; [2008] 3 WLR 1023.
39. The respondent now accepts that the appellant's claims fall potentially within the ambit of Article 14. The respondent submits:

i) as to the claim that the War Pensions scheme discriminates in favour of married partners as against unmarried partners, the position of married and unmarried partners is not analogous and, even if analogous, the difference in treatment is justified; and

ii) as to the claim that the War Pensions scheme discriminates in favour of unmarried partners who satisfy the very narrow criteria as against other unmarried partners, the difference in treatment is justified.

The test for determining whether there has been discrimination contrary to Article 14

40. The European Court of Human Rights (ECtHR) has consistently set out the test in the following way:

"For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised." (P.M. v. United Kingdom [2005] ECHR 504; Application no. 6638/03, 19 July 2005, para. 26)

"The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations ... Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised." (Burden v. United Kingdom [2008] ECHR 357; Application no. 13378/05 29 April 2008, para. 60)

41. Although both Lord Hoffmann and Lord Walker in R. (Carson) v. Secretary of State for Work and Pensions and another [2005] UKHL 37; [2006] 1 AC 173 cast doubt on the need to ask first whether there has been a difference in the treatment of persons in relevantly similar situations, that appears to be the approach adopted by the ECtHR. In the instant appeal Miss Lieven submitted that married partners and unmarried partners are not in an analogous position. She accepted that unmarried partners in the narrow category covered by the War Pensions scheme were in an analogous position to unmarried partners who are outside the scheme.
42. The ECtHR has made it clear on many occasions that

"The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy." P.M. para. 26 and Burden, para. 60

43. Ms Lieven relies on this "margin of appreciation". However, the fact that a Contracting State enjoys a margin of appreciation does not directly help an English court when deciding whether there has been discrimination. In Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] UKHL 30 (to which I turn below), Lord Nicholls said:

20. In the present case the House is concerned with the interpretation and application of domestic legislation. In this context the domestic counterpart of a state's margin of appreciation is the discretionary area of judgment the court accords Parliament when reviewing legislation pursuant to its obligations under the Human Rights Act 1998. …

44. Earlier in his speech he had said:

19. … Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights. The readiness of the court to depart from the view of the legislature depends upon the subject matter of the legislation and of the complaint. National housing policy is a field where the court will be less ready to intervene. Parliament has to hold a fair balance between the competing interests of tenants and landlords, taking into account broad issues of social and economic policy. But, even in such a field, where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified.

45. In In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2008] 3 WLR 76, Lord Hoffmann said, in reference to the statutory requirement to "take into account" decisions of the ECtHR:

"36. … But none of these considerations [for following ECtHR decisions] can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all Member States, as it does when it says that the question is within the margin of appreciation.

37. In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch."

46. In that case, the facts of which I shall briefly set out below, Lord Hoffmann held that there was unjustified discrimination even though the House might be going further than the ECtHR would have done (see para. 29).
47. In the same case Lord Hope re-examined what he had said in R v Director of Public Prosecutions Ex p Kebilene [2000] 2 AC 326, at 380-381 and said:

"48. … Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests."

48. Even though the principle of "margin of appreciation" does not directly help an English court, courts here have tended to adopt an attitude of restraint towards government policy similar to the margin of appreciation, at least where what are called the suspect grounds of discrimination, such as race and gender, are not involved. In Carson Lord Hoffmann said, at paragraph 15:

"Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the 14th Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification … ."

49. Lord Hoffmann continued:

16. There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

17. There may be borderline cases in which it is not easy to allocate the ground of discrimination to one category or the other and, as I have observed, there are shifts in the values of society on these matters. Ghaidan v Godin-Mendoza [2004] 2 AC 557 recognised that discrimination on grounds of sexual orientation was now firmly in the first category. Discrimination on grounds of old age may be a contemporary example of a borderline case. But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy. …"

50. Carson concerned the difference in treatment between residents and non-residents in so far as state pensions are concerned. The House of Lords held that there was no violation of Article 14 in conjunction with Article 1 of the First protocol, a conclusion also reached by the ECtHR in a decision delivered since the hearing of the appeal: Carson and others v. UK (Application No 42184/05). In the House of Lords Lord Hoffmann said:

"25. … in deciding what expatriate pensioners should be paid, Parliament must be entitled to take into account competing claims on public funds. To say that the reason why expatriate pensioners are not paid the annual increases is to save money is true but only in a trivial sense: every decision not to spend more on something is to save money to reduce taxes or spend it on something else.

26. I think it is unfortunate that the argument for the Secretary of State placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad. It is unnecessary for the Secretary of State to try to justify the sums paid with such nice calculations. It distracts attention from the main argument. Once it is conceded, as Mr Blake accepts, that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the courts the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources."

51. In Carson Lord Walker cited with approval a passage in the judgment of Laws LJ in the Court of Appeal [2003] EWCA Civ 797; [2003] 3 All ER 577, para. 73:

"… in any particular area the decision-making power of this or that branch of government may be greater or smaller, and where the power is possessed by the legislature or executive, the role of the courts to constrain its exercise may correspondingly be smaller or greater. In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest. I conceive this approach to be wholly in line with our responsibilities under the Human Rights Act 1998. In general terms I think it reflects a recurrent theme of the Strasbourg jurisprudence, the search for a fair balance between the demands of the general interest of the community and the protection of individual rights: see Sporrong v Sweden (1982) 5 EHRR 35."

52. There is no dispute that the test for determining whether there has been discrimination must be applied at the time of the claim, in this case 2004, see e.g. Ghaidan v Godin-Mendoza [2004]UKHL 30; [2004] 2 AC 557, para. 23. The fact that provisions of the War Pension scheme which draw a distinction between married partners and unmarried partners or unmarried partners of one category and unmarried partners of another category may well have been justifiable in the past does not mean that they are necessarily so in 2004. On the other hand, it does not follow from the fact that the government makes changes to the Occupational Pension scheme of the kind made in 2003 or makes a change to the War Pension scheme of the kind announced in 2003 and made in 2005 (that is to place unmarried partners substantially in the same position as married partners), that the courts will hold that failure to make the change earlier is unjustified discrimination. R (Hooper) v. Secretary of State for Work and Pensions [2005] UKHL 487; [2005] 1 WLR 1681; [2006] 1 All ER 487 was concerned with the preservation of widows' pensions and other benefits for those widows whose husbands had died before 9 April 2001. The legislation passed in 1999 had put widows and widowers in the same position from that date, had reduced the benefits generally and had preserved widows' pensions and other benefits for those widows whose husbands had died before 9 April 2001. The case of the claimant widowers, whose wives had died before that date, was that not to pay them the same widows' benefits was discrimination within Article 14. The claim was rejected by the House of Lords. Lord Hoffmann said:

"37. The Court of Appeal [which had allowed the claim] seems to have treated the decision of Parliament in 1999 to abolish WP from 9 April 2001 as an acknowledgement that there could have been no possible reason for the legislature not taking such a step at that time and therefore as demonstrating that it should have taken the same step at an earlier date. But in my opinion the courts are not in a position to say that the 1999 decision was inescapably right or that a different decision, whether earlier or later, would have been inescapably wrong. It was a matter for legislative judgment."

53. Ms Lieven relied heavily on this passage. As I read this passage, Lord Hoffmann is not saying that the courts will never require the government to make what would have been in this case retrospective payments. He had earlier said:

"32. … Once it is accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment is no longer justified becomes a social and political question within the competence of Parliament."

If, for example, the legislation had given benefits to white people only and there was not (and it is difficult to think that there could be) any justification for differentiating black people, it may well be that the courts would insist on retrospective payments to cure the discrimination.

Are married partners and unmarried partners in an analogous situation?

54. Ms Lieven submits that married partners and unmarried partners are not in an analogous situation and therefore there was no discrimination.
55. She relies, in particular on two decisions of the ECtHR, Burden a decision of the Grand Chamber decided in April 2008 and the earlier decision in Shackell v. United Kingdom Application no. 4851/99 27 April 2000.
56. In Shackell the applicant was the unmarried partner of a man who died in 1995. She submitted a claim for widow's benefits to the Benefits Agency, The claim was refused because she was not a widow. In her application to the ECtHR she claimed that the lack of provision for unmarried survivors was discriminatory. The application was rejected as inadmissible. The Court accepted (page 5) that "there may well now be an increased social acceptance of stable personal relationships outside the traditional notion of marriage" but continued: "However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it." A little later the Court said:

"The Court considers that the promotion of marriage, by way of limited benefits for surviving spouses cannot be said to exceed the margin of appreciation afforded to the respondent Government."

57. In Burden the applicants were elderly unmarried sisters who had lived together in a stable, committed and mutually supportive relationship all their lives. The value of each half share of their jointly owned property was worth significantly more than the then current exemption threshold for inheritance tax. Both had made wills leaving all their property to the other. Married partners and same sex partners who had entered a civil partnership are, on the death of the other, exempt from the charge in respect of property passing from the deceased to the other. The applicants claimed that the inheritance tax discriminated against them in breach of Article 14, a claim which the Grand Chamber rejected.
58. The Grand Chamber said:

61. The applicants claim to be in a relevantly similar or analogous position to co-habiting married and Civil Partnership Act couples for the purposes of inheritance tax. The Government, however, argue that there is no true analogy because the applicants are connected by birth rather than by a decision to enter into a formal relationship recognised by law.

62. The Grand Chamber commences by remarking that the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom's Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members … .The fact that the applicants have chosen to live together all their adult lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the two types of relationship.

63 Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences … . In Shackell …, the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors' benefits, since 'marriage remains an institution which is widely accepted as conferring a particular status on those who enter it'. The Grand Chamber considers that this view still holds true.

64. Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple now also has the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage (see paragraphs 16-18 above).

65. As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of co-habitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, cited above), the absence of such a legally binding agreement between the applicants renders their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view is unaffected by the fact that, as noted in paragraph 26 above, Member States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.

66. In conclusion, therefore, the Grand Chamber considers that the applicants, as co-habiting sisters, cannot be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1."

59. Ms Lieven submits that the Grand Chamber's decision in Burden is dispositive of the issue. Ms Carss-Frisk submits that it is not and took us to a number of cases to support her proposition.
60. Baroness Hale in AL (Serbia) v. Secretary of State for the Home Department [2008] UKHL 42; [2008] 1 WLR 1434 had this to say about Burden:

"25. Nevertheless, as the very helpful analysis of the Strasbourg case law on article 14, carried out on behalf of Mr AL, shows, in only a handful of cases has the Court found that the persons with whom the complainant wishes to compare himself are not in a relevantly similar or analogous position (around 4.5%). This bears out the observation of Professor David Feldman, in Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 144, quoted by Lord Walker in the Carson case, at para 65:

'The way the court approaches it is not to look for identity of position between different cases, but to ask whether the applicant and the people who are treated differently are in 'analogous' situations. This will to some extent depend on whether there is an objective and reasonable justification for the difference in treatment, which overlaps with the questions about the acceptability of the ground and the justifiability of the difference in treatment. This is why, as van Dijk and van Hoof observe, … 'in most instances of the Strasbourg case law . . . the comparability test is glossed over, and the emphasis is (almost) completely on the justification test'.

A recent exception, Burden v United Kingdom, app no 13378/05, 29 April 2008, is instructive. Two sisters, who had lived together for many years, complained that when one of them died, the survivor would be required to pay inheritance tax on their home, whereas a surviving spouse or civil partner would not. A Chamber of the Strasbourg Court found, by four votes to three, that the difference in treatment was justified. A Grand Chamber found, by fifteen votes to two, that the siblings were not in an analogous situation to spouses or civil partners, first because consanguinity and affinity are different kinds of relationship, and secondly because of the legal consequences which the latter brings. But Judges Bratza and Björgvinsson, who concurred in the result, would have preferred the approach of the Chamber; and the two dissenting judges thought that the two sorts of couple were in an analogous situation. This suggests that, unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification." (Underlining added)

61. Ms Carss-Frisk relies strongly on the underlined passage.
62. In Sommerfeld v Germany [2003] ECHR 34; Application no 31871/96 the ECtHR sitting as a Grand Chamber held that a German law which made a distinction between a married and unmarried father in relation to access to his child adverse to the latter was a violation of Article 14. The Court concluded:

93. The Court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of or within wedlock can be regarded as compatible with the Convention (see Mazurek v. France, no. 34406/97, § 49, ECHR 2000-II, and Camp and Bourimi v. the Netherlands, no. 28369/95, §§ 37-38, ECHR 2000-X). The same is true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage-based relationship. The Court discerns no such reason in the instant case.

63. Ghaidan v Godin-Mendoza, relied upon by Ms Carss-Frisk, concerned the Rent Acts. On the death of a protected tenant of a dwelling-house his or her surviving spouse, if then living in the house, becomes a statutory tenant by succession. But the relevant legislation also provided that a person who was living with the original tenant "as his or her wife or husband shall be treated as the spouse of the original tenant". Prior to the HRA it had been held that the survivor of a homosexual couple could not enjoy this benefit. Mr Godin-Mendoza claimed that the difference in treatment between homosexual couples and heterosexual couples fell foul of Article 14 and the legislation should accordingly be read down. The House of Lords agreed. Ms Carss-Frisk, on behalf of the landlord, unsuccessfully argued that any change should be prospective only and not retrospectively by judicial decision. Lord Nicholls said:

"18. … one looks in vain to find justification for the difference in treatment of homosexual and heterosexual couples. Such a difference in treatment can be justified only if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Here, the difference in treatment falls at the first hurdle: the absence of a legitimate aim. None has been suggested by the First Secretary of State, and none is apparent. … ."

64. The result of the decision in this case is that homosexual couples are treated the same as married couples, albeit that the result was achieved by finding that there was no justification to treat heterosexual couples and homosexual couples differently. As Lord Millett, dissenting observed:

" 99. … By what is claimed to be a process of interpretation of an existing statute framed in gender specific terms, and enacted at a time when homosexual relationships were not recognised by law, it is proposed to treat persons of the same sex living together as if they were living together as husband and wife and then to treat such persons as if they were lawfully married. …"

65. In P.M. v United Kingdom [2005] ECHR 504; Application no 6638/03, 19 July 2005 the applicant complained that he was unable to deduct for tax purposes maintenance payments in respect of his daughter as he was unmarried. He submitted that he was in an analogous situation to a married father. The Government relying on Shackell submitted, as does Ms Lieven in this case, that he could not claim to be in an analogous position to a married father. The Court held that:

"27.  The Court notes the Government's arguments that this case is not about paternity/maternity but the married status of the parents. It is true that any person, not married to the mother of the child concerned, would not qualify for tax deductions for maintenance payments made. That said however, it is nonetheless the case that the applicant may claim to be treated differently as an unmarried father than a married father, though both are parents of the child to be maintained and under obligations to pay maintenance. This is not a situation where the applicant seeks to compare himself to a couple living in a subsisting marriage (see, for example, Lindsay v. the United Kingdom, cited above, where married and unmarried couples, taxed differently, were not found in be in a comparable position), but one where the married father has separated or divorced and is also living apart from the child of the family. Other persons, not parents, are not covered by the child support provisions and are generally in a different situation. This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in an relevantly similar position."

66. The Court went on to hold that the difference of treatment was unjustified. It referred to the earlier case of Sahin v. Germany (2001) 36 EHRR 765; application no 3094/96 for the proposition that as a general rule unmarried fathers, who have established life with their children, can claim equal rights of custody and contact with married fathers.
67. In In re G (Adoption: Unmarried Couple), an unmarried couple wished to adopt the child of one of them. The relevant Northern Irish legislation provided that an application for adoption could only be made by two persons if they were married. Lord Hoffmann, having cited P.M., did not discuss whether an unmarried couple were in an analogous position to a married couple, but went on to consider the issue of justification, finding the discrimination unjustified. Lord Hope approached the case in a similar way. He said that the exclusion of couples on the grounds that they were not married was neither objectively justified or proportionate. In extending eligibility to unmarried couples:

"55. … All we would be saying is that they were to be treated, for the purposes of eligibility for adoption, as if they were married to each other."

68. Baroness Hale also found the exclusion unjustified. She referred (para. 101) to the introduction of legislation enabling same sex couples to enter into a registered partnership bringing with it almost all the legal consequences of marriage, whilst at the same time not amending legislation preventing them from adopting. She said:

"101 … It is difficult to see how this could survive a challenge under article 14 of the European Convention, which takes a particularly firm line against discrimination on the ground of sexual orientation.

69. Later she said:

"107. … It cannot seriously be argued that a difference in treatment between married and unmarried couples, in relation to the right to respect for their family life, is not covered by article 14."

70. Lord Mance referred to the passage in Burden, to the effect that there was no analogy between married and Civil Partnership couples on the one hand and heterosexual or homosexual couples (see para 58 above). He continued:

"133. Shackell and Burden were decisions in the context of taxation and social benefits, where the right to which the alleged discrimination related was the right to protection of property provided under article 1 of Protocol No. 1 to the Convention. The present appeal arises in the different context of the right to respect for private and family life, in relation to which it is clear that distinctions between married and unmarried persons may be unjustifiably discriminatory. Lord Hoffmann has in paragraph 9 cited paragraph 28 of the Court's ruling in P. M. v. United Kingdom (Application no. 6638/03) (2005) 18 BHRC 668, which demonstrates that differences in marital status may, even in the context of article 1 of Protocol No. 1, be unjustifiably discriminatory. In that case, the unjustified discrimination consisted of unequal tax treatment of payments made by an unmarried father to support the child of a former relationship, compared with similar payments made by a father who had been married and was now separated or divorced. The Court in paragraph 28 also noted that 'as a general rule unmarried fathers, who have established family life with their children, can claim equal rights of contact and custody with married fathers (see Sahin v. Germany (2001) 36 EHRR 765, para 94'. Sahin was a case like the present where the alleged discrimination consisted of lack of appropriate respect for the applicant's family life; the Court concluded that there had been a breach of article 8 read with 14. In my opinion, articles 8 and 14 are also engaged in the present case."

71. Ms Lieven relies on this paragraph for the proposition that in the area of taxation and social benefits married couples and unmarried couples can properly be treated as not being in an analogous situation, albeit that they are or might be in other areas. However, that does not cater for P.M., which she distinguishes on the basis that it involved a child. It is not surprising that Baroness Hale in AL (Serbia) said that "it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification".
72. In my view, the decision whether a married and unmarried couple are in an analogous situation must be made in the light of the scheme under examination. By the end of 2003 unmarried couples were being treated substantially the same as married couples for the purposes of the Occupational Pension scheme and the Government had announced that it would by 2005 be treating them the same for the purposes of the 2005 Order. This distinguishes the present case from the situation in Burden. Thus in 2004 it would, in my view, be wrong to say that they were not, in the context of armed forces benefits, in an analogous position for the purposes of Article 14. To this extent I would reach a different conclusion to that of the Pensions Appeal Commissioner, in paragraph 29 of his decision.
73. I turn to the issue of justification.

Justification

74. As we have seen, the appellant submits that the War Pensions scheme discriminates in favour of married partners as against unmarried partners and/or in favour of unmarried partners who satisfy the very narrow criteria in the scheme as against other unmarried partners. I shall call these the two grounds of discrimination upon which the appellant relies. She succeeds if the respondent cannot justify the alleged discrimination.
75. Ms Carss-Frisk put her case in three alternative ways.
76. Category 1: She submits, first, that the War Pension scheme discriminated against the appellant on the two grounds of discrimination upon which she relies, in that it did not provide that any death due to service, whenever the death or cause of death occurred, attracted a pension for the unmarried partner in a substantial relationship at the time of the death.
77. Category 2: She submits, secondly, and in the alternative, that the War Pension scheme discriminated against the appellant on the two grounds of discrimination upon which she relies, in that it did not provide that any death due to service after September 2003, whenever the cause of death occurred, attracted a pension for the unmarried partner in a substantial relationship at the time of the death. She chose September 2003 because it was at that time, as we have seen, that the government announced its intention to make changes to the War Pension Scheme to give benefits to unmarried partners.
78. Category 3: She submits, thirdly and in the alternative, that the War Pension scheme discriminated against the appellant on the grounds of discrimination upon which she relies, in that it did not provide that any death due to service, whenever the death or cause of death occurred, attracted a pension payable only as from April 6 2005 for the unmarried partner in a substantial relationship at the time of the death.
79. Ms Carss-Frisk submitted that the respondent had not sought to justify the alleged discrimination on the grounds of cost and relied on the fact that the statement of Mr Davies included no details of the costs involved in eradicating the alleged discrimination. Ms Carss-Frisk relies on a number of cases (forwarded to us after the hearing of the appeal) which concern discrimination in the employment context. She referred us to in Cross and others v British Airways PLC [2005] IRLR 423, in which Burton J, having examined the jurisprudence of the ECJ, said at paragraph 70:

"It seems to us a clear and understandable proposition that a Government, with its notionally bottomless purse, cannot be permitted to justify a social policy which is obviously discriminatory, on grounds of costs."

80. She also submitted that if the government decides to level up (i.e. give rights to unmarried partners) rather than level down (take away the pension rights of spouses), then it should do so retrospectively. The alternative would be to level down, however unpalatable that might be.
81. Ms Lieven, whilst accepting that there was no evidence of the costs of remedying the alleged discrimination, submitted that it was not necessary to do so. She submitted that discrimination on non-suspect grounds can be justified on utilitarian grounds. She also drew our attention to the passage in Lord Hoffmann's speech in Carson (paragraph 50 above), in which he said that the statistical evidence about rates of inflation did not, in effect, help in the resolution of the issue. However, in that case, Lord Hoffmann found that the resident pensioners and the non-resident pensioners were not in an analogous position.
82. Ms Lieven submitted that it would be very difficult to determine what the costs would be of the decision sought by the appellant. She pointed out that there would be no way of knowing whether a member of the armed forces who had died at any time in the past and whose death was due to service, had, at the time of his or her death, an unmarried partner still alive to-day. Unlike in some pension schemes, there is no requirement in the War Pension scheme for the widow/er of a person who has died and whose cause of death was due to service, to have been married to the deceased during the period of service or during a defined period thereafter. It would follow, if the unmarried partner is to be put in the same position as the married partner, that the substantial relationship need only have come into existence at some time before death.
83. Ms Lieven submitted that it would be very difficult to calculate the costs of retrospectively altering the scheme given the length of time over which the War Pension scheme has been in existence and the number of members of the armed forces involved. Ms Carss-Frisk gave no satisfactory answer to this point, other than to say that the costs of implementing the scheme should properly be ignored.
84. Ms Lieven also submitted that it might be very difficult to resolve whether a person was the unmarried partner at the time of death, but she accepted that the burden would on the alleged unmarried partner to prove that he or she was.
85. If Ms Carss-Frisk is right then it is difficult to see how unmarried partners unable to take the benefit of the changes made to the Occupational Pension schemes in 2003 and thereafter would not be able successfully to challenge the failure to put them in the same position as married partners. Again this would make it difficult to calculate the financial costs of the decision which the appellant seeks.
86. In my view, the respondent was not obliged to produce evidence of cost, for the reasons given by Ms Lieven. In any event, it would be very difficult to calculate the costs of the decision sought by the appellant, whichever one of the three alternative ways were adopted.
87. Ms Lieven also submitted that the government is justified in not remedying discrimination retrospectively. As I have already said, there is, in my view, no absolute principle that the courts could not order retrospective payments to cure unjustified discrimination. It is of interest to note that when widowers were given the same rights as widows in 2002, there was an element of retrospectivity. However, discrimination against widowers would be a suspect ground of discrimination.
88. Ms Lieven submitted even in cases of sex discrimination the ECtHR has accepted that in taking steps to overcome such discrimination the member states can take into account the economic consequences of the actions they take. In Stec Applications nos. 65731/01 and 65900/01, 12 April 2006 and White and Runkee Applications nos. 42949/98 and 53134/99, 10 May 2007, where there has been acknowledged to be sex discrimination within the benefit system, but the ECtHR has found justified the UK government's gradual approach to reversing that discrimination. However both cases were decided primarily on the basis that the UK had a margin of discrimination (as to which see para. 43 above).
89. At the end of the day this case, in my view, falls squarely within the now well-established principle that where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that the discrimination is not justified. Whatever the position to-day, historically the distinction in the War Pension Scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners was justified. In 2003 the government recognised that the distinction was no longer justified, altered the Occupational Pension Scheme prospectively and announced its intention to make changes to the War Pension Scheme from some time in the future but also prospectively. The decision as from what point in time unmarried partners are put in an analogous position to spouses in the field of pensions is a decision for the government and is a decision with which the courts will not normally interfere. In the words of Laws LJ (para. 51 above):

"In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest."

90. There are, in my view, no grounds for interference in this case in any of the three categories identified by Ms Carss-Frisk.

LORD JUSTICE WALL

91. I agree

LORD JUSTICE WARD

92. I also agree