R (on the applications of Hooper, Withey, Naylor and Martin) v Secretary of State for Work and Pensions

JurisdictionUK Non-devolved
JudgeLORD BROWN OF EATON-UNDER-HEYWOOD,LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD SCOTT OF FOSCOTE,LORD HOPE OF CRAIGHEAD
Judgment Date05 May 2005
Neutral Citation[2005] UKHL 29
CourtHouse of Lords
Date05 May 2005
Regina
and
Secretary of State for Work and Pensions
(Appellant)

ex parte Hooper and others (FC)

(Respondents)
Regina
and
Secretary of State for Work and Pensions
(Respondent)

ex parte Hooper

(Appellant)

and others

Regina
and
Secretary of State for Work and Pensions
(Respondent)

ex parte Hooper and others (FC)

(Appellants)

(Conjoined Appeals)

[2005] UKHL 29

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD
1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow the appeals of the Secretary of State and dismiss the appeals of the widowers.

2

I add a note on one point, concerning the claims in respect of widow's payment and widowed mother's allowance under sections 36 and 37 of the Social Security Contributions and Benefits Act 1992. The widowers' claim is that non-payment of corresponding amounts to them was unlawful discrimination. Non-payment of these amounts to them, it is said, violated their Convention right under article 14 read with article 1 of Protocol 1. Accordingly the Secretary of State's failure to make corresponding payments to widowers was unlawful under section 6(1) of the Human Rights Act 1998. By failing to make such payments the Secretary of State acted incompatibly with the claimants' Convention right.

3

The Secretary of State's primary defence to this claim lies in section 6(2) of the Human Rights Act. Your Lordships are all of the opinion that this defence is well-founded. I agree. There is a measure of disagreement on whether the applicable paragraph of section 6(2) is paragraph (a) or paragraph (b). In my view it is not necessary to decide which is the applicable paragraph in this case and there is good reason for not doing so. It is not necessary because it is clear that one paragraph or the other is applicable. It is not desirable because a decision on which paragraph is applicable cannot be reached without first deciding a legal point which is better left for decision on another occasion.

4

Let me explain. Whether the limb of section 6(2) applicable in the present case is paragraph (a) or paragraph (b) depends upon the view taken of the Secretary of State's common law powers. That is the starting point. Under the Social Security Contributions and Benefits Act 1992 Parliament made provision for payment of benefits to widows, but not widowers. The parliamentary intention in this regard was abundantly clear. If the effect of this statutory provision was that thereafter the Secretary of State acting on behalf of the Crown could not lawfully have made corresponding payments to widowers in exercise of the Crown's common law powers, then the present case would fall squarely within section 6(2)(a). If the Secretary of State could not lawfully have made corresponding payments to widowers he could not have acted otherwise than he did.

5

The Secretary of State, however, does not contend he lacked power to make corresponding payments to widowers and that therefore the case falls within paragraph (a). Mr Sales submitted that the Secretary of State, acting on behalf of the Crown, had power and retained power to make such payments. Mr Goudie QC, of course, made a similar submission. Indeed, the foundation of the widowers' case is that the Secretary of State had such a power. The widowers' case is that the Secretary of State had such a power and, unlawfully, failed to exercise it.

6

Whether the Crown, in exercise of its common law powers, could lawfully have made corresponding payments to widowers is a difficult question with far-reaching constitutional implications. I prefer to express no view on this issue in the absence of fuller argument. This issue would be better decided in a case where, unlike the present case, the contrary argument is presented. This issue does not call for decision in the present case because, either way, section 6(2) provides a defence for the Secretary of State. If the Secretary of State could not lawfully have paid the widowers the case falls within paragraph (a) as already mentioned. If the Secretary of State could lawfully have made corresponding payments to widowers the case falls within section 6(2)(b). Section 6(2)(b) provides that section 6(1) does not apply to an act if the authority was acting so as to give effect to a provision in primary legislation. Clearly, in making payments to widows the Secretary of State was giving effect to sections 36 and 37 of the Social Security Contributions and Benefits Act 1992. Likewise in not making corresponding payments to widowers the Secretary of State was giving effect to those statutory provisions. Sections 36 and 37 make provision for payments to widows alone. If the Secretary of State were asked 'Why are you not making similar payments to widowers?' he would have answered 'Because the statute provides these payments should be made to widows and makes no provision for payments to widowers'. The fact that the Secretary of State could lawfully have made corresponding payments to widowers does not detract from the crucial fact that in declining to pay widowers he was 'giving effect' to the statute.

Introduction

LORD HOFFMANN

My Lords,

7

The four claimants are widowers. Mr Hooper's wife died on 27 March 1997. Mr Withey's wife died on 26 November 1996. Mr Martin's wife died on 11 September 2000. Mr Naylor's wife died on 2 July 1995. All except Mr Naylor had dependent children at the time of bereavement.

8

If the claimants had been widows, they would have been entitled to claim widow's benefits. Under section 36(1) of the Social Security Contributions and Benefits Act 1992 they would have been entitled to claim a widow's payment ("WPt") of £1,000. Under section 37, all except Mr Naylor would have been entitled to claim widowed mother's allowance ("WMA"), a weekly sum payable until such time as the children ceased to be dependent. Under section 38, Mr Naylor would have been entitled to claim a widow's pension ("WP").

9

The widowers submit that in denying them the benefits which would have been payable to widows, the Secretary of State for Work and Pensions has acted in a way which is incompatible with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the European Convention on Human Rights. Under article 14 they have the right to enjoyment of the rights and freedoms "set forth in this Convention" without discrimination on grounds of sex. One of those rights is the "peaceful enjoyment of possessions" protected by article 1 of Protocol 1 and another is the respect for family life protected by article 8. A widow's benefit is a pecuniary right generated by the national insurance contributions of the husband and its object is the enhancement of family life. The widowers therefore say that if the state provides such benefits, it must do so without discrimination on grounds of sex. Before the judge (Moses J) the Secretary of State accepted only that WMA fell within the ambit of article 8 but the judge found that all three benefits did so. On the other hand, he rejected the argument that they fell within article 1 of Protocol 1. In the Court of Appeal and before your Lordships the Secretary of State has accepted that all widow's benefits fall within the ambit of one or both of the Convention rights.

10

The widowers accept that in respect of the acts or omissions of the Secretary of State which occurred before the Human Rights Act 1998 came into force on 2 October 2000, they can make no complaint in domestic law. But they submit that in denying them the benefits which a widow would have received after that date, the Secretary of State has acted incompatibly with their Convention rights and therefore contrary to section 6(1):

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

11

The widowers say that they are victims of the Secretary of State's unlawful acts or omissions and are therefore entitled to bring proceedings under section 7(1)(a).

12

To these claims, the Secretary of State raises two principal defences. The first, in response to Mr Naylor's claim, is that discrimination between men and women in the payment of WP was and continues to be objectively justified. The second, in response to the claims of the other three widowers, is that although discrimination in the payment of WPt and WMA did in principle infringe the Convention rights of widowers, it was not unlawful under section 6(1) because the application of that subsection was excluded by section 6(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."

13

Thus the question of objective justification for WP and whether section 6(2) excludes a claim in respect of WPt and WMA are the two chief issues in this appeal. In addition, there are some subsidiary questions, to which I shall later return, as to whether the individual widowers would have qualified for benefits even if they had been widows: questions which go either to the legality of the Secretary of State's refusal to pay them or to whether they qualify as victims.

14

Before the 1998 Act came into force, some other widowers petitioned the European Court of Human Rights in Strasbourg for redress. In the lead case of Willis v United...

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