Sharon Green v Metropolitan Police Commissioner
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 27 May 2022 |
| Neutral Citation | [2022] EWHC 1286 (Admin) |
| Docket Number | Case No: CO/1863/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1286 (Admin)
Mr Justice Fordham
Case No: CO/1863/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Peter Edwards and Professor Conor Gearty QC (Hon) (instructed by Lexent Partners) for the Claimants
Andrew Waters (instructed by Metropolitan Police) for the Defendant
Richard O'Brien and Tom Tabori (instructed by GLD) for the Interested party
Hearing date: 4/4/22 & 5/4/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
Regulation C9 (“Cessation”)
This case is about the human rights compatibility of a mechanism under which a police pension is ‘switched off’. The provision at the heart of the case is Regulation C9 of the Police Pensions Regulations 1987 (SI 1987/257, as amended) (“PPR87”). PPR87 contain the scheme rules for the 1987 police pension scheme (“PPS”). Regulation C9 is entitled:
Termination of widow's or civil partner's pension on remarriage or other event .
The parties agree that, for the purposes of deciding the present case, it is sufficient to focus on Regulation C9(3). It provides:
Where a widow … or a surviving civil partner … is entitled to a pension under this Part and – (a) marries or has married, (b) remarries or has remarried, (c) forms or has formed a civil partnership or new civil partnership, (d) with a person to whom she is not married lives together as husband and wife, or (e) with a person who is not her civil partner lives together as if they were civil partners, she shall not be entitled to receive any payment on account of the pension in respect of any period after her marriage or remarriage, or after the formation of her civil partnership, or after her cohabitation begins .
I will use the word “Cessation” to describe the ‘switching off’ of a pension by the operation of Regulation C9, taking place by virtue of the phrase “shall not be entitled to receive any payment on account of the pension.” The phrase “a pension under this Part” is a reference to Part C “widows’ awards”. The word “widow” is defined, in Part C generally so that it “includes widower and … surviving civil partner”, and Regulation C9 so that it “includes widower” (PPR87 Schedule A). There is a discretionary power to recommence pension payments, after a Cessation, if the person in question “has again become a widow or her civil partner dies or that marriage or civil partnership has been dissolved or that cohabitation ceases” (Regulation C9(4)). I will use the phrase “Payable For Life” to describe the situation if the Cessation mechanism were absent or were disapplied. To do justice to this case I am going to need to consider, in some detail, the context and setting of Regulation C9 (§§4–28 below), and its impacts (§§29–35).
This legal challenge was commenced by Queen's Bench Division claim form on 12 August 2020. At that date the three Claimants – Ms Green, Ms Jennings and Mr Sneller – were all entitled to and in receipt of a PPS Part C pension. The ‘focus in time’ which they adopt for the purposes of their claim – as was clarified in argument – is as from that date of commencement of proceedings (12 August 2020). They say that, by and after that date, Regulation C9 – and its retention as a PPS scheme rule – had become unjustifiable and unlawful in human rights terms. These proceedings were transferred to the Administrative Court to continue as a judicial review claim, on pleaded judicial review grounds which were filed on 26 May 2021. By that date, Mr Sneller's Part C pension had been the subject of a Regulation C9 Cessation decision (21 December 2020). The remedy sought by the Claimants is a declaration that, in one or more respects, Regulation C9 is incompatible with their Convention rights as scheduled to the Human Rights Act 1998 (“ HRA”). The Interested Party (“the Home Secretary”) denies any incompatibility with a Convention right. But the following points are agreed as to what the legal position would be if there were such an incompatibility: (1) it does not arise as a result of any provision of “primary legislation” nor by virtue of any provision of “primary legislation” which “cannot be read or given effect in a way compatible” with those rights ( HRA s.6(2)); (2) there is no provision of “primary legislation” which would “prevent removal of the incompatibility” ( HRA s.3(2)(c)); (3) it would not be “possible” to read and give effect to Regulation C9(3) in a way which would be compatible with the Convention right ( HRA s.3(1)); (4) the declaration sought would be appropriate and sufficient. The Defendant, as PPS scheme administrator, adopts a neutral position in these proceedings and has accepted that – if the Court were to grant such a declaration – the Defendant would then disapply the Cessation provisions in Regulation C9 and would reinstate Mr Sneller's Part C pension payments backdated to the Cessation decision in his case.
Convention rights
The Claimants say Regulation C9 Cessation is incompatible with their Convention rights under Articles 12, 8 and 14 (read with A1P1). I will need to explain, in some detail, the essence of their claims (§§55–67 below), having considered the key authorities relied on (§§36–54), before analysing the issues (§§68–95 below). As regards the Article 14 claim, the parties agree that it is sufficient to focus on Article 14 being read with A1P1: the Home Secretary accepts that the “ambit” test (§36 below) is met for A1P1, and the Claimants accept that the Article 14 claim is no stronger if the “ambit” test is also met for Article 8 or Article 12. These are the Convention rights relied on:
Article 12. Right to marry. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right .
Article 8. Right to respect for private and family life. (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others .
Article 14. Prohibition of discrimination. 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 .
A1P1. Protection of property. 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 .
The PPS
PPR87 were made by the Home Secretary, pursuant to powers conferred by Parliament in sections 1 to 8 of the Police Pensions Act 1976 (“the 1976 Act”), on 20 February 1987 and came into force on 1 April 1987. It is going to be necessary to see the PPS in its context and setting, as to which I was greatly assisted by a House of Commons Library Briefing Paper (No. 07109, 23 April 2019) written by Djuna Thurley (“BP19”). The PPS was considered in Carter v Chief Constable of Essex Police [2020] EWHC 77 (QB) [2020] ICR 1156 (§§51–52 below) and the history of similar police pension schemes in England and Wales was summarised in a Table in Carter at §9. An equivalent 1988 Northern Ireland police pension scheme (governed by SR 1988/374) was the subject of In re Eccles [2021] NIQB 111 (§54 below). The PPS applies in respect of “Scheme Members” who have at a relevant time been – and may still be – serving members of the police force (“Active Scheme Members”). On their retirement from the police, a Scheme Member ceases to be an Active Scheme Member. Thereafter, their entitlement to a pension arises, payable in accordance with PPS scheme rules. Active Scheme Members pay contributions, payable in accordance with scheme rules. Pension entitlements of widows and other eligible beneficiaries – known as “Survivors' Pension Benefits” (“SPBs”) – are payable in accordance with scheme rules. As the Table in Carter at §9 reflects: the level of contribution paid by an Active Scheme Member under the PPS was set at 11% (as it had been under predecessor schemes since 1982); the maximum PPS pension for a Scheme Member was two-thirds of final salary after 30 years (as it had been under predecessor schemes since 1948); the compulsory retirement age was 55 (as it had also been since 1948); and SPBs were one-half of the Scheme Member's pension for ‘pre-retirement widows’ (and a ‘proportionate’ pension for ‘post-retirement widows’ based on service after 6 April 1978: §10 below). The phrases ‘pre-retirement widow’ and ‘post-retirement widow’ are shorthand for whether a marriage was, or was not, at a time when the police officer was still an Active Scheme Member.
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