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DENIs repudiation of the judges description of the aim of the regulations (in so far as they relate to the treatment of surviving unmarried partners of scheme members) is, to say the least, surprising. Ratio |
It is especially so in light of DENIs proper - but inevitable - acceptance that the provision of a survivor benefit under the scheme engages A1P1 of ECHR and that the appellants status, as a person who was in a cohabiting relationship other than a marriage or a civil partnership at the time of her partners death, is a ... |
The judge had been careful to couch his description of the aim of this aspect of the pension scheme in terms which reflected the stability and long term nature of the relationship. Ratio |
It surely must be the case that the regulations were geared to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and, on the other hand, those unmarried long term partners who were in a stable relationship with the scheme member before death. Ratio |
Given DENIs acceptance that the provision of a survivor benefit engages A1P1 and that the appellant has the requisite status to rely on article 14, unwarranted (ie unjustified) difference of treatment (ie discrimination) would bring it into breach of its ECHR obligations if such unequal treatment was not eradicated. Ra... |
In my view, DENI simply cannot be heard to say that elimination of unjustified difference of treatment between, on the one hand, the survivor of a scheme member who establishes that they were in a stable long term relationship with that member and, on the other, a married or civil partner of a scheme member was not the... |
This must have been its objective and, expressed in that way, it is no more than a rephrasing of the judges formulation of the aim. Ratio |
The error of DENIs submission on this point and, with respect, Higgins LJs characterisation of the aim of the regulations on this aspect is to confuse the aim with the means employed to achieve it. Ratio |
Permitting some cohabitants in certain defined circumstances to obtain the same pension provision as married or civil partner survivors is the way in which unjustified discrimination is avoided. Ratio |
It is not an end in itself. Ratio |
The essential question, therefore, is whether imposing a nomination requirement in fact conduces to unwarranted difference of treatment or to its removal. Ratio |
It is for this reason that it is relevant to note that the wishes of a married scheme member did not have to be stated or ascertained. Ratio |
If nomination was not required of a married survivor of a scheme member and if the overall aim of the amended regulations was to place a surviving cohabitant who was in a stable, long term relationship with the deceased scheme member on an equal footing with a surviving spouse or civil partner, the need for a nominatio... |
If it was designed to test the truth of a claim that the relationship was stable and long-lasting, that would be one thing. Ratio |
But it was not. Ratio |
The obligation to establish those features of the relationship was entirely independent of the nomination procedure. Ratio |
Nothing in the contemporaneous documentation suggests that this consideration underlay its inclusion in the scheme. Ratio |
One must therefore look elsewhere to find out why the nomination procedure was considered to be needed. Ratio |
As to the averment in Ms Cochranes affirmation that the policy objectives of the procedural requirements were those identified in the 2004 consultation paper issued by the Office of the Deputy Prime Minister, Girvan LJ correctly pointed out at para 6 of his judgment in the Court of Appeal, that that consultation paper ... |
The 2004 paper is of no assistance, therefore, as to any objective which the nomination procedure might achieve. Ratio |
Moreover, as again Girvan LJ rightly observed in para 6, there was simply no evaluation of the pros and cons of having a nomination or opt-in procedure. Ratio |
The only discernible reason operating at the time the 2009 regulations were made was that it was considered necessary and/or desirable that they should mirror the provisions in England and Wales. Ratio |
Post hoc justification for the nomination requirement Ratio |
In para 15 of her first affirmation, Ms Cochrane alluded to the formal dimension that the nomination procedure brought to a claim for survivors pension. ARG |
She said: It is the view of the Department that these [procedural] requirements are reasonable and proportionate measures designed to establish in a formal manner, the intentions of the deceased about a matter which has testamentary significance. ARG |
Furthermore, cohabiting relationships are different from marriage and civil partnerships insofar as they may be commenced and ended without legal formality and do not involve a change of an individuals legal status. ARG |
The Department is of the view that if a Scheme member chooses to have a cohabiting relationship which is neither marriage nor civil partnership, the requirements of the 2009 Regulations are an appropriate means by which to determine the existence, formality and status of the relationship in addition to obtaining indepe... |
It has not been suggested by DENI that these considerations featured in its assessment of whether a nomination procedure was required before the 2009 Regulations were made. Ratio |
They must nevertheless be considered now in order to see whether they support the claim as to the reasonableness and proportionality of the measure. Ratio |
The value of formality in this setting is not explained. Ratio |
Since the regulations require a surviving cohabitant to establish that she or he had been in a long term relationship with the scheme member, it is difficult to see what formality adds to the question of entitlement. Ratio |
The same may be said of the circumstance that cohabitation does not involve a change in legal status. Ratio |
It is in the very nature of cohabitation that there is no legal formality or change of status involved. Ratio |
But there is no immediately obvious reason that some ersatz substitute for the legal formality of marriage or civil partnership would contribute to the assessment of a cohabitants entitlement to a survivors pension. Ratio |
That entitlement derives from the survivor having been in a longstanding relationship with the scheme member. Ratio |
In so far as the use of the word existence in the final sentence of the cited passage connotes some extra proof of the relationship, as I have already pointed out, the terms of regulation 25 require the survivor to establish by independent means that the relationship was of the nature and duration required to satisfy t... |
There was no further need of proof beyond this. Ratio |
On the question of the verification of the deceaseds wishes, I have already made clear in paras 31-36 above why I do not consider that this is a relevant consideration. Ratio |
Before the Court of Appeal, both respondents took up the theme of testamentary significance, which had been foreshadowed in Ms Cochranes affirmation. ARG |
They submitted that by lodging a nomination form, the scheme member and her or his cohabitant were required to make a public affirmation akin to the formal and public commitment of marriage and that this added a necessary ingredient of correctness to the process. ARG |
This argument found favour with the majority, Higgins LJ, describing it as crucial (para 19) and Coghlin LJ characterising the nomination form as a public statement from both participants equivalent to the production of a certificate of marriage or civil partnership (para 23). ARG |
The need for a formal or public affirmation is not explained. Ratio |
Certainly, in this context, it has no inherent value. Ratio |
It does not, of and in itself, make the survivor any more deserving of the pension. Ratio |
The essence of entitlement is that the relevant parties have lived together for a sufficiently long period and that one is financially dependent on the other or that they are financially interdependent. Ratio |
Being required to make a public declaration that these conditions obtain adds nothing to the objective inquiry as to whether they in fact exist. Ratio |
Arguments were also advanced to the effect that administrative costs would increase if the nomination procedure was abandoned and that actuarial predictions were easier with that procedure in place. ARG |
No evidence to support those claims was presented to the Court of Appeal and the arguments were not pursued before this court. Ratio |
Echoes of them might be found in the printed case of DENI to the effect that the nomination requirement is a bright-line inclusionary rule of general application directed to workability and legal certainty but again no material to establish the truth of these assertions was proffered. Ratio |
It is clear, therefore, that the making of a nomination adds nothing to the evidential demands made of a survivor to show that she or he was in a longstanding relationship with the deceased scheme member and that they were either financially dependent on or financially interdependent with the deceased. Ratio |
It is also evident that no intrinsic value attaches to the making of such a nomination. Ratio |
The areas of agreement Ratio |
of A1P1 which provides: It is not in dispute that the denial of a survivors pension falls within the ambit Every natural or legal person is entitled to the peaceful enjoyment of his possessions. Ratio |
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. Ratio |
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. Ratio |
Although the right to a pension might not be regarded, in conventional terms, as a possession, it is well settled that A1P1 protects possessions, which can be either existing possessions or assets, including claims, in respect of which the applicant can argue that he or she has at least a legitimate expectation of obta... |
It does not, however, guarantee the right to acquire property (see Kopeck v Slovakia (2004) 41 EHRR 43, para 35 (GC) and J A Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 45, para 61 (GC)). Ratio |
It is likewise not in dispute that the appellant, as a person who was in a cohabiting relationship other than a marriage or a civil partnership at the time of her partners death, enjoyed a relevant status for the purposes of article 14 ECHR (In re G (Adoption Unmarried Couple) [2008] UKHL 38; [2009] AC 173, paras 8, 10... |
Article 14 provides that the enjoyment of the rights and freedoms in ECHR 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. STA |
It was also agreed that a surviving unmarried partner falling within regulation 25(6)(b) of the 2009 Regulations is in an analogous situation to a surviving married partner or civil partner. Ratio |
The single area of dispute between the parties, therefore, is whether the interference with the appellants right to property has been objectively justified - see para 13 of Higgins LJs judgment. Ratio |
The starting point in the analysis of whether there is objective justification for interference with the appellants right to property must be the duty of the state to secure her entitlement to equal treatment. Ratio |
Unlike, for instance, the duty under article 8 of ECHR, which enjoins the state to respect the citizens right to a private life etc, article 14 requires of the state that it should ensure that her rights under ECHR are in place unless there is objective justification for denying them to her. Ratio |
The European Court of Human Rights (ECtHR) has been careful to question whether discrimination in the enjoyment of survivors rights based on some prior failure to regularise a relationship has been justified: Marckx v Belgium (1979) 2 EHRR 330. PRE |
In that case ECtHR held that the limitations placed on the capacity of an unmarried mother to give and bequeath, and her child to take and inherit, property were discriminatory if they had no objective and reasonable justification in the sense that there was no reasonable relationship of proportionality between the mea... |
The obligation to secure rights must require a greater level of vigilance on the part of the state authorities than is animated by a duty to have respect for a particular species of right. Ratio |
The duty to secure rights calls for a more proactive role than the requirement to respect rights. Ratio |
The question whether justification has been demonstrated must be assessed objectively - see R (SB) v Governors of Denbigh School [2006] UKHL 15; [2007] 1 AC 100, para 30, per Lord Bingham of Cornhill. Ratio |
That is not to say, however, that the court should substitute its view for that of the decision-maker. Ratio |
Indeed, it may be appropriate to accord a wide margin of discretionary judgment to the conclusion of a decision-maker, particularly where it is the legislature that makes the choice and where the conclusion lies within the field of socio-economic policy. Ratio |
Thus, for instance, in the case of Swift v Secretary of State for Justice [2013] EWCA Civ 193; [2014] QB 373, where a claim pursuant to section 1(3)(b) of the Fatal Accidents Act 1976 was dismissed because, although the claimant was a cohabiting partner of the deceased, she did not meet the condition of having lived in... |
But the margin of discretion may, of course, take on a rather different hue when, as here, it becomes clear that a particular measure is sought to be defended (at least in part) on grounds that were not present to the mind of the decision-maker at the time the decision was taken. Ratio |
In such circumstances, the courts role in conducting a scrupulous examination of the objective justification of the impugned measure becomes more pronounced. Ratio |
An example of this is to be found in the case of Belfast City Council v Miss Behavin Ltd [2007] UKHL 19; [2007] 1 WLR 1420, paras 46-47, where Lord Mance asked: what is the position if a decision-maker is not conscious of or does not address his or its mind at all to the existence of values or interests which are relev... |
The courts scrutiny is bound to be closer, and the court may have no alternative but to strike the balance for itself, giving due weight to such judgments as were made by the primary decision-maker on matters he or it did consider. Ratio |
The appellant has submitted that where the decision-maker has not made any judgment, in advance of its decision, about the factors which it later deploys in support of that decision, no institutional deference can be due to such post hoc logic. ARG |
Ms Mountfield QC, who appeared for the appellant, has argued that those factors must be judged on their own terms. ARG |
They should be given only such weight as their cogency and any supporting evidence warrant. ARG |
While accepting that such factors could, in principle, attract weight as a result of the particular experience or expertise of the deciding body, she argues that the court should not exercise restraint by virtue of the bodys constitutional responsibility for taking the decision, because the factors advanced post hoc di... |
I am not prepared to accept this submission without qualification. Ratio |
Obviously, if reasons are proffered in defence of a decision which were not present to the mind of the decision-maker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision- maker when the particular scheme was devised. Ratio |
Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide. Ratio |
DENI has submitted that the correct legal test to be applied in determining whether the nomination requirement in the 2009 Regulations is justified and proportionate is that set out in Stec v United Kingdom (2006) 43 EHRR 47 at para 52: ... a wide margin is usually allowed to the State under the Convention when it come... |
Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislatures policy choice unless it is manifestly w... |
Mr McGleenan QC, who appeared for DENI, pointed out that the manifestly without reasonable foundation test was adopted and applied by this court in R (JS) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] UKSC 16; [2015] 1 WLR 1449 (also known as R (SG) v Secretary of State for ... |
I am prepared to accept for the purpose of this appeal that the test to be applied is that of manifestly without reasonable foundation. Ratio |
Whether that test requires adjustment to cater for the situation where the proffered reasons are the result of deliberation after the decision under challenge has been made may call for future debate. Ratio |
Where the state authorities are seen to be applying their direct knowledge of their society and its needs on an ex post facto basis, a rather more inquiring eye may need to be cast on the soundness of the decision. Ratio |
Since it does not affect the outcome of this appeal, however, I am content that the without reasonable foundation formula should be taken to apply in this instance. Ratio |
Both DENI and NILGOSC drew heavily on the joint dissenting judgment of Lord Sumption and Lord Reed in R (Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57; [2015] 1 WLR 3820 in advancing the claim that where a persons status is not an immutable characteristic of the individual affected, the... |
The judgment was also cited in support of the bright- line rule that the nomination procedure is said to establish and in advancing the case that, in the socio-economic field, a broad area of discretionary judgment should be allowed to state authorities. PRE |
These principles, well-recognised as they are, depend heavily on the context in which it is sought to apply them. Ratio |
As it happens, I have no difficulty in accepting that each is worthy of close consideration in this case. Ratio |
But whether they impel the outcome for which the respondents contend must be subject to careful examination of the particular aspects of the case which they are said to affect. Ratio |
To set the scene for that examination, it is necessary to look at some passages from Lord Sumption and Lord Reeds dissenting judgment. Ratio |
On the first of the arguments viz that where the status involved is not an immutable characteristic, there should be a commensurately broader discretion available to the decision-maker, it should, of course, be recalled that in Tigere the status concerned was one of immigration. Ratio |
But I accept that statements made concerning that status may apply to the present case where the status is one of cohabitant. Ratio |
At para 74 of the joint judgment, Lord Sumption and Lord Reed said: The Strasbourg court has accepted that a persons immigration status can be an other status for the purpose of article 14: Bah v United Kingdom (2011) 54 EHRR 773, paras 45-46. Ratio |
But it also made it clear that, because immigration status is not an immutable characteristic of the individual affected, the state should be accorded a correspondingly wide margin of appreciation when determining whether discrimination based on that status is justifiable and proportionate to its objective, at para 47:... |
It is relevant that the appellant and Mr McMullan had chosen not to marry for the ten years that they lived together (although, of course, they had clearly decided to change that situation shortly before he died). Ratio |
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