A fine distinction
Date: 24 April 2009
Authors: David Burrows
Issue: Vol 159, Issue 7366
Categories: Features, Family, Human rights, Discrimination
For the family lawyer Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39, [2009] All ER (D) 25 (Feb) performs three separate functions.
● First, it shows the Court of Appeal looking at dependant's pensions for a relatively narrow class of unmarried claimant. To that extent it is of limited value, perhaps.
● Second, it shows the Court of Appeal carefully analysing a Human Rights Act 1998 issue, in this case in the field of discrimination.
● And finally it provides an example of a meticulous approach—by Lord Justuce Hooper, who gave the lead judgment—to the exercise of a judicial discretion; and in that wider context, the judgment is of value, to judge and practising family lawyer alike.
Barbara Ratcliff e had lived with Lt Cdr K since 1976, but they had not married nor had they had any children. They lived as a married couple and were so regarded by most people. Lt Cdr K died aged 69 in 2004 after 36 years' naval service. He suffered from mesothelioma caused by exposure to asbestos while in the navy; and Ms Ratcliff e cared for him and nursed him in the final stages of his cancer (para [5]). She applied for a pension under the Naval, Military and Air Force etc (Disablement and Death) Service Pensions Order 1983 (SI 1983/883), but Arts 29 and 30 prevented any pension payments to her.
Her successive appeals to the tribunal and then to the Pensions Appeal Commissioner were refused. She appealed to the Court of Appeal on the grounds that to deny her a pension was incompatible with her European Convention rights, because the 1983 Order discriminated against her as an unmarried person; or, failing that, she sought a declaration of incompatibility against the secretary of state.
Complicated provisions
Hooper LJ looked at discrimination under the European Convention on Human Rights (the Convention). Article 14 provides that Convention rights should 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”. Article 1 of the First Protocol provides for personal and peaceful “enjoyment of [a claimant's] possessions” by him or her. The case, said the Court of Appeal, therefore turned on the following:
(i) whether or not the war pensions scheme discriminated in favour of married partners as against unmarried partners;
(ii) whether or not it was entitled to do so, because the two categories were not analogous or were not relevantly similar; but
(iii) if they were analogous, and therefore the scheme was discriminatory, was such discrimination justified?
The secretary of state accepted that the scheme was “potentially” discriminatory, but denied that there was any analogy; and, if there was, that it was justified.
A human rights analysis
To deal with the last two aspects of the case Hooper LJ made a careful analysis of human rights jurisprudence on discrimination which would stand alone as a helpful essay on the subject. The starting point is PM v United Kingdom (App no 6638/03) [2005] ECHR 504; where it was held that, for Art 14 purposes “a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification”. It is for the courts to ensure against discrimination, the role of the courts is one of review of Parliament's exercise of its powers; and decisions of the courts will be tempered by allowing to Parliament a margin of appreciation appropriate to the subject area of the complaint and to the complaint itself.
Discrimination categories
It is recognised that discrimination falls, respectively, into the absolute and the relative categories explained by Lord Hoffmann in R (Carson) v Secretary of State for Work and Pensions and another [2005] UKHL 37: “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. [First category:] Characteristics such as race, caste, noble birth, membership of a political party and gender, are seldom, if ever, acceptable grounds for differences in treatment... But [second category:] the Strasbourg court has given it a wide interpretation [to Art 14], 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 off end our notions of the respect due to the individual and those which merely require some rational justification.”
Discrimination in the first category will only rarely be justifiable “merely on utilitarian” grounds; whereas issues as to discrimination in the second category—which might include marital status, for example, or education, ability, occupation—“usually depend upon considerations of public interest” (Lord Hoffmann in Carson at [16]). In the second category Parliament does not necessarily have to justify to the courts why treatment of one type of similar applicant differs from another.
The question in terms of discrimination then is: can the applicant show that he is in “a relevantly similar or analogous position”? Hooper LJ concluded that the position of Ms Ratcliff e and Lt Cdr K must be looked at in the context of the particular pension scheme under consideration by the court; and, in general terms, by the end of 2003 unmarried couples were being “treated in substantially the same way as married couples” (para [72]). Their position was analogous with that of a married couple and therefore to refuse a pension was discriminatory. This left the question of whether discrimination was justified.
Justification
Having come this far Ms Ratcliff e might reasonably think that she had made it: that a pension would be paid to her. However, in a brief coda to his judgment on discrimination Hooper LJ deals with justification. This involves going back to second category discrimination, where it may be justified on utilitarian or “non-suspect” grounds.
Hooper LJ set out his own view of the application in the following terms: “This case 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.”
And so, in utilitarian terms—namely of a government which looks for a fair balance “between the demands of the general interest of the community and the protection of individual rights” (Lord Justice Laws in Carson)—the government was justified, said Hooper LJ, in depriving Ms Ratcliff e of a pension; and Ward and Wall LJJ concurred. Its decision was to that extent, not discriminatory under Art 14 of the Convention.
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