JUDGMENT
In the matter of an application by Denise Brewster
for Judicial Review (Northern Ireland)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Dyson
JUDGMENT GIVEN ON
8 February 2017
Heard on 24 November 2016
Appellant
1
st Respondent
Helen Mountfield QC Nicolas Hanna QC
Chris Buttler Donal Sayers
(Instructed by Deighton
Pierce Glynn
)
(Instructed by Carson
McDowell LLP Solicitors
)
2
nd Respondent
Tony McGleenan QC
Donal Lunny BL
(Instructed by
Departmental Solicitor’s
Office, Department of
Finance and Personnel
)
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LORD KERR: (with whom Lady Hale, Lord Wilson, Lord Reed and Lord
Dyson agree)
Introduction
1. William Leonard McMullan, known as “Lenny” McMullan, and Denise
Brewster lived together for some ten years before December 2009. On Christmas
Eve that year, they became engaged. Sadly, Lenny McMullan died two days later.
His death was sudden and unexpected; he was only 43 years old. He was found dead
in the home that he shared with Ms Brewster in Lilac Avenue, Coleraine, County
Londonderry. The couple had bought the house together in April 2005. Mr
McMullan died intestate. He had no children.
2. At the time of his death, Mr McMullan was employed by Translink, the
company which provides Northern Ireland’s public transport services. He had
worked for that company for approximately 15 years. Throughout that time Mr
McMullan was a member of and paid into the Local Government Pension Scheme
Northern Ireland (the scheme). The first respondent, the Northern Ireland Local
Government Officers’ Superannuation Committee (NILGOSC), is the statutory
body responsible for administering the scheme. When Mr McMullan died,
NILGOSC administered the scheme pursuant to the Local Government Pension
Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland)
2009 (SI 2009/32) (the 2009 regulations). The second respondent, the Department
of the Environment for Northern Ireland (DENI), made and was responsible for the
2009 regulations.
3. Among other things, the 2009 regulations provide for the payment of
retirement pensions to members of the scheme and for the payment of pensions and
other benefits to certain survivors of members. In April 2009, on the coming into
force of the 2009 regulations, a cohabiting surviving partner became eligible for the
first time, for payment of a survivor’s pension. But, in order to qualify for payment
of the pension, a cohabiting surviving partner had to be nominated by the member.
Ms Brewster believes that Mr McMullan had completed a form in which he
nominated her. NILGOSC says, however, that it did not receive the form and has
refused to pay her a survivor’s pension. The appeal has proceeded on the basis that
the nomination was not made.
4. Ms Brewster applied for judicial review of NILGOSC’s decision not to award
her a survivor’s pension, arguing that the absolute requirement of nomination
imposed on unmarried partners as a condition of eligibility for a survivor’s pension
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under the 2009 regulations constitutes unlawful discrimination contrary to article 14
of the European Convention on Human Rights and Fundamental Freedoms (ECHR),
when read in conjunction with article 1 of the First Protocol (A1P1) to ECHR. In a
judgment delivered on 9 November 2012, (neutral citation [2012] NIQB 85) Treacy
J held that the nomination requirement was “an instrument of disentitlement” (para
59) in relation to unmarried partners and that whilst the impugned regulations
pursued a legitimate aim, there was not a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved. He therefore made
an order declaring that the requirement of nomination of a cohabiting partner in the
2009 scheme was not compatible with article 14 ECHR read together with A1P1.
He quashed the decision of NILGOSC dated 1 July 2011 by which it had declined
to pay the appellant a survivor’s pension.
5. NILGOSC and DENI appealed. On 1 October 2013, by a majority, Girvan
LJ dissenting, the Court of Appeal (Higgins, Girvan and Coghlin LJJ, neutral
citation [2013] NICA 54) allowed the appeal. Higgins LJ found that the nomination
requirement was not unjustified or disproportionate; and Coghlin LJ also concluded
that the requirement had not been shown to be manifestly without reasonable
justification.
Survivor benefit schemes for unmarried partners of public service employees
6. In December 1998, the government in Westminster published a Green Paper
on pension reform. It was entitled “A new contract for welfare: partnership in
pensions”. The Green Paper stated that occupational pension schemes were one of
the great welfare success stories of this country (para 1, p 65). It was observed that,
“[m]ost large occupational pension schemes in the private sector now provide
survivors’ benefits for the unmarried partners of the opposite sex of scheme
members, although in the overwhelming majority of cases this is at the discretion of
the trustees” (para 59, p 76). At the time of the publication of the Green Paper, in
contrast to private sector schemes, public service schemes only provided survivors’
pensions to the spouse of a deceased member (para 60, p 76).
7. The first public sector scheme to introduce survivors’ pensions for unmarried
partners was the Civil Service Pension Scheme in 2002. It included a requirement
to “jointly [make] and [sign] a declaration in a form prescribed by the Minister”. No
evidence has been proffered as to why the requirement for such a declaration was
included.
8. In October 2004 a consultation exercise was conducted into the operation of
the England and Wales Local Government Pension Scheme: Facing the Future –
Principles and propositions for an affordable and sustainable Local Government
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Pension Scheme in England and Wales. This was carried out through the Office of
the Deputy Prime Minister. It was proposed that survivors’ benefits be extended
generally to cohabiting partners, provided that members of individual schemes
wanted this and were prepared to meet the extra cost involved. The consultation
paper suggested that “certain considerations” arose because of the different
situations of, on the one hand, married or civil partners and, on the other, cohabiting
unmarried couples but the only consideration referred to in the paper itself was the
nature of proof required in the latter case to establish “they were living together as
if they were husband and wife or civil partners”. Outlining the types of evidence that
would be required to verify the authenticity of the relationship, the paper adumbrated
a number of different requirements, including that there be a “valid nomination of a
partner with whom there would be no legal bar to marriage or civil registration” –
essentially an opt-in obligation: para B8.7. Once again, the consultation paper
provided no explanation as to why it was thought that evidence of a valid nomination
was needed in addition to objective evidence of the nature of the relationship.
Moreover, there was no consultation question inviting response to the proposed
evidence requirements.
9. In June 2006 a further consultation paper was issued setting out four options,
all of which proposed survivors’ pensions for cohabitants but none of which
contained a nomination requirement: Where next? – Options for a new-look Local
Government Pension Scheme in England and Wales. The consultation paper stated,
however, that the Law Commission was conducting a project on cohabitation and
that a final report was expected by August 2007. It was noted that the Law
Commission was considering the case for “allowing cohabiting couples to ‘opt-in’
to a scheme imposing enforceable financial obligations … in the event of their
separation”: paras 6.14-6.15.
10. The Law Commission’s inquiry into and subsequent report on cohabitation
was, of course, conducted on a much wider plane than consideration of survivors’
benefits for unmarried partners of public service employees. The consultation paper
published in advance of the commission’s consideration ranged over all manner of
financial protection for unmarried cohabiting couples: Cohabitation: The Financial
Consequences of Relationship Breakdown (2006) (Consultation Paper No 179). A
key element of the discussion was whether an “opt-in” provision was required in
order to anchor financial security for cohabiting partners. In its consultation paper
the commission adverted to the fact that opt-in schemes had been introduced in
several European states and elsewhere but that the “take-up for these schemes, even
where open to both opposite-sex and same-sex couples, is generally low”: para 5.45.
The reasons for that were discussed in the consultation paper. It could be that one
partner was unwilling to make the commitment or that the other, willing to make the
commitment, was reluctant to raise it lest that jeopardise the relationship. As the
consultation paper pointed out at para 5.28, it might be considered
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“… too harsh to deny all legal protection to the economically
weaker party in the event of separation. Even if the failure to
take that step were due to inertia, or a lack of proper
appreciation of the legal significance of not taking that step, the
harshness of the result in some cases could be regarded as a
wholly disproportionate sanction for that inactivity.”
11. The commission’s provisional view was set out in paras 5.53 and 5.54 of the
consultation paper:
“5.53 In our view, a scheme that applied by default to eligible
cohabitants, subject to a right to opt out, would create an
appropriate balance between affording scope for party
autonomy and securing fairer outcomes for individuals at the
end of cohabiting relationships. It would mean that inactivity
would not, as it currently does, leave the more vulnerable party
unprotected at the point of separation: the scheme would apply
by default in the absence of a valid opt-out agreement.
5.54 Many other jurisdictions have adopted this approach,
following the trend set in 1984 by New South Wales, the first
jurisdiction to create a statutory scheme for financial relief
between cohabitants. That pattern has been replicated across
other jurisdictions, including the rest of Australia, most of the
Canadian provinces, New Zealand, some parts of Spain,
Sweden and, most recently, Scotland.”
12. After extensive consultation, the Law Commission’s final report was duly
published on 3 July 2007 (Cohabitation: The Financial Consequences of
Relationship Breakdown (Law Com No 307) (Cm 7182)) and, having observed that
most consultees had agreed with the commission’s provisional view, it firmly
rejected an opt-in requirement. The penalisation of cohabitants for their failure to
subscribe to an opt-in scheme was discussed at para 2.88 of the report:
“… research suggests that providing people with information
about the law and what they should do to protect their legal
position does not guarantee that they will take those steps, or
even be able to do so. Indeed, while there was considerable
support among respondents to the Living Together Campaign
survey for opt-in regimes, the fact that so few of those
individuals had taken action based on the information that they
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had obtained suggests that few would in practice register their
relationship or be able to do so.”
13. A major underpinning of the commission’s preference for the opt-out scheme
was the protection of the vulnerable partner in the relationship and this might be
considered to have more direct relevance to separation of cohabiting partners, rather
than the death of one of them. The latter situation was discussed in the commission’s
report at para 6.13 where it was stated:
“It is important … not to equate separation and death. Many
consultees felt, and we agree, that there is a qualitative
difference between a relationship cut short by death and a
relationship terminated by separation. On separation, there has
ordinarily been a failure of commitment by at least one of the
parties. It is, therefore, legitimate when considering the
eligibility of separating couples under our recommended
scheme to ask whether the length of the relationship indicated
that there was, at least at one time, sufficient commitment
between the parties to justify bringing the relationship within
the scheme. Where a relationship is terminated by death,
however, the ending of the relationship does not of itself
suggest that there was any lack of commitment on either side.
This qualitative difference may well affect what should be
regarded as reasonable financial provision on death and who
should be eligible to make a claim under the 1975 [Inheritance
(Provision for Family and Dependants)] Act.”
14. It is, of course, the case that these comments were made in the context of
whether cohabitants should be included in the categories of person entitled to make
an inheritance claim under the 1975 legislation. But important general
considerations underlie the observations. In the first place, it will be more readily
deducible that the requisite level of commitment existed between the parties where
the ending of the relationship is brought about by death rather than separation.
Secondly, notions of fairness have an obvious role to play when one is considering
whether it is right to deny financial benefit to a surviving unmarried partner when a
married partner would have an automatic right to that benefit. These considerations
bear on the justification for the preservation of the requirement of nomination in the
impugned regulations.
15. The Local Government Pension Scheme (Benefits, Membership and
Contributions) Regulations 2007 (SI 2007/1166) (which, of course, applied in
England and Wales) were laid before Parliament in April 2007, three months before
the Law Commission’s report was published. Notwithstanding the fact that no
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proposal for a nomination requirement had been made in the consultation paper,
such a requirement featured in regulations 24 and 25. The Explanatory Note to the
regulations did not give a reason for the nomination requirement.
16. The Local Government Pension Scheme in England and Wales was revised
in 2013 with effect from 1 April 2014 for claims arising after that date: the Local
Government Pension Scheme Regulations 2013 (SI 2013/2356). The revisions
included the removal of the opt-in or nomination requirement for unmarried couples.
The same change was made to the Scottish scheme by the Local Government
Pension Scheme (Scotland) Regulations 2014 (SSI 2014/164). The circumstances in
which these changes took place and why they were not introduced in Northern
Ireland are discussed in paras 24-28 below.
The background to the Northern Ireland scheme
17. In an affidavit filed in these proceedings on behalf of DENI, Marie Cochrane,
a deputy principal in the department, stated that the scheme in Northern Ireland had
mirrored the scheme in Great Britain because it was considered to be generally
desirable that local government employees should have “equivalent pension benefits
right across the UK”. In August 2006, therefore, while the consultation in England
and Wales was taking place, a separate consultation exercise was begun in Northern
Ireland. Although the Northern Ireland exercise was separate from that which had
started in England and Wales some two months before, the consultation paper for
the latter formed the centrepiece of the documentation sent to consultees in Northern
Ireland. Consultees were told that the Northern Irish scheme “maintains parity” with
the scheme in Great Britain. As earlier noted, the consultation paper for England and
Wales did not suggest a nomination requirement in any of the four proposals that it
contained. Nor did the letter from Ms Cochrane which started the consultation
process in Northern Ireland.
18. Despite the absence of any reference to a nomination requirement,
NILGOSC, in its response to the consultation letter, raised the issue. In its letter of
9 October 2006 to DENI, it pointed out that the Civil Service Pension scheme
stipulated that there be a valid nomination of a cohabiting partner to receive a
survivor’s pension. NILGOSC immediately referred to “a number of inequalities”
that would arise from such a requirement and to the possibility of legal challenge if
these were not addressed. These included:-
1. The fact that married or civil partners did not have to be living together
in order to benefit from the scheme, whereas cohabiting unmarried partners
did;
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2. A married or civilly registered couple did not have to be in an
exclusive, long term relationship established for a minimum of two years in
order for a survivor pension to be paid; and
3. A survivor pension would automatically be paid to a married or civilly
registered partner; no nomination was required in their case. The lack of a
valid nomination form was likely to result in disputes where all the other
criteria were met.
19. Since neither the consultation paper for the England and Wales exercise nor
the letter from Ms Cochrane which set the Northern Ireland consultation in train
contained any reference to a nomination requirement, it is unsurprising that no
policy objectives that might be achieved by such a requirement were identified by
DENI when it set up the consultation process. But the letter from NILGOSC
certainly brought the question of the need for such a requirement to centre stage.
The appellant has pointed out that no evidence has been produced by DENI to show
that the matter was considered at all, even after the letter from NILGOSC was
received. Indeed, the only policy driver which emerges from a consideration of
contemporary documents is the need to “maintain parity” with the rest of Great
Britain. No independent assessment of the need for or the viability of a nomination
requirement was undertaken. It appears that no attempt was made to address the
possible difficulties that NILGOSC’s letter had identified.
The 2009 Regulations
20. The 2009 Regulations were made under powers conferred by the
Superannuation (Northern Ireland) Order 1972 (SI 1972/1073 (NI 10)). Article 9 of
that Order allowed DENI to make regulations providing for pensions, allowances or
gratuities to be paid to or in respect of such persons, or classes of persons, as were
to be prescribed. In general, these were persons employed by local authorities and
other public service employees.
21. On 6 June 2008 DENI invited consultees to comment on the draft regulations.
The draft regulations included the nomination requirement. The only reference to
this in the 6 June letter was that survivor benefits would be payable to widows,
widowers, civil partners and nominated cohabiting partners, but the letter did not
provide any explanation for the reason for including a condition of nomination nor
did it specifically invite comment on it.
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22. The 2009 Regulations were made on 25 February 2009 and the new Pension
Scheme came into effect on 1 April 2009. The relevant provisions are contained in
regulations 24 and 25. The material parts of those regulations are as follows:
“24(1) If a member dies leaving a surviving spouse, nominated
cohabiting partner or civil partner, that person is entitled to a
pension payable from the day following the date of death …
25(1) ‘Nominated cohabiting partner’ means a person
nominated by a member in accordance with the terms of this
regulation.
(2) A member (A) may nominate another person (B) to
receive benefits under the Scheme by giving the Committee a
declaration signed by both A and B that the condition in
paragraph (3) has been satisfied for a continuous period of at
least two years which includes the day on which the declaration
is signed.
(3) The condition is that –
(a) A is able to marry, or form a civil partnership
with, B;
(b) A and B are living together as if they were
husband and wife or as if they were civil partners;
(c) neither A nor B is living with a third person as if
they were husband and wife or as if they were civil
partners; and
(d) either B is financially dependent on A or A and
B are financially interdependent.
(4) But a nomination has no effect if the condition in
paragraph (3) has not been satisfied for a continuous period of
at least two years which includes the day on which the
declaration is signed.
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(5) A nomination ceases to have effect if –
(a) either A or B gives written notice of revocation
to the Committee;
(b) A makes a subsequent nomination under this
regulation;
(c) either A or B marries, forms a civil partnership
or lives with a third person as if they were husband and
wife or as if they were civil partners; or
(d) B dies.
(6) B is A’s surviving nominated partner if –
(a) the nomination has effect at the date of A’s death;
and
(b) B satisfies the Committee that the condition in
paragraph (3) was satisfied for a continuous period of at
least two years immediately prior to A’s death.”
23. It is clear that mere nomination will not satisfy the requirements of regulation
25. By para (4) of the regulation, nomination has no effect if the condition specified
in para (3) has not in fact been satisfied for the requisite period. And by para 6(b)
the nominated partner is required to satisfy the committee that the condition in para
(3) had indeed been fulfilled. So the applicant must show that she has been a
cohabitant for two years before the date of declaration and been in that position for
two years before the date of death. The provisions demand of the surviving
cohabitant that she or he prove to the satisfaction of the committee that the
stipulations in para (3) have been met. They are freestanding of the nominating
procedure. The question therefore arises, what is the function of requiring
nomination? The appellant says that it adds nothing to the process of establishing
that the qualifying conditions have been met.
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The 2013 Regulations in England and Wales and the 2014 Regulations in Scotland
24. The Local Government Pension Scheme in England and Wales was revised
with effect from 1 April 2014 for claims arising after that date. The revisions
included the removal of the opt-in requirement for unmarried couples. Survivors’
pensions are now available to “cohabiting partners”. They are defined in Schedule
1 to the Local Government Pension Scheme Regulations 2013 as follows:
“‘cohabiting partner’ means a person whom the appropriate
administering authority is satisfied fulfils the following
conditions –
(a) the person (P) has fulfilled the condition in
paragraph (b) for a continuous period of at least two
years on the date the member (M) died, and
(b) the condition is that –
(i) M is able to marry, or form a civil
partnership with P,
(ii) M and P are living together as if they were
husband and wife or as if they were civil partners,
(iii) neither M nor P is living with a third
person as if they were husband and wife or as if
they were civil partners, and
(iv) either P is financially dependent on M, or
M and P are financially interdependent.”
As stated in para 16, the same change was made to the Scottish scheme by the Local
Government Pension Scheme (Scotland) Regulations 2014.
25. The circumstances in which the nomination requirement in the England and
Wales scheme was removed were explained in an affidavit of Chris Megainey, the
deputy director (Workforce, Pay and Pensions) in the Department for Communities
and Local Government (DCLG). He explained that the first consultation document
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which was issued before the draft 2013 regulations were prepared had included a
proposal that the nomination requirement be maintained but consultees were invited
to address the question of the need for its retention in light of the decision of Treacy
J in the present case. Seventeen of the responses which were received (a significant
majority) expressed a wish that DCLG should explore the possibility of introducing
“a less onerous system for determining a cohabiting partner’s entitlement to a
survivor’s pension”. In response to these replies, further consultations took place
and it was decided that the nomination requirement should be removed. In a second
affidavit, Mr Megainey said that, to the best of his knowledge and belief, “the
nomination requirement was removed from the legislation because it was considered
to be unnecessary.”
26. Kimberley Linge, Policy Manager in the Scottish Public Pensions Agency
(SPPA), explained the reasons for the change in the Scottish regulations. She said
that after the Court of Appeal had given its decision in the present case, SPPA had
sought advice from the Scottish Government Legal Department about the
nomination issue. The advice received was to the effect that the nomination
requirement was an overly burdensome one for cohabitants when compared with the
requirements imposed on married partners and civil partners. Initially, that advice
was not acted upon but following discussion at the Scottish Local Government
Pension Scheme Advisory Group (a tripartite group comprising the unions, the
Convention of Scottish Local Authorities and the Scottish Government) it was
agreed to dispense with the nomination requirement.
The application to re-open the appeal
27. When the appellant’s advisers became aware of the changes to the English
2013 and the Scottish 2014 regulations, they applied to the Court of Appeal for a reopening of the appeal. This was against the background that in the draft amended
regulations which had been proposed in Northern Ireland in 2014 the nomination
requirement was to be retained. DENI opposed the application to re-open the appeal.
In an affidavit filed to support DENI’s opposition to the reopening of the appeal, Ms
Cochrane stated:
“I can confirm that the Department was not aware, at the date
of hearing of this Appeal, of the intention of DCLG to amend
the specific provision on the nomination requirement for a
cohabiting partner survivor benefit. … The Department, which
is not copied into consultations by DCLG, first became aware
of the existence of the 20 June 2013 consultation document on
or about 24 June 2013 through either the DCLG website or
through a specialist pensions bulletin published by Pendragon.
However, the Department did not become aware of the relevant
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part of the 20 June 2013 consultation until some point after 8
July 2013 … Having become aware of the relevant part of the
20 June 2013 consultation document, I did not consider that
this could have any bearing upon the Brewster case because the
said case had already been heard on 8 and 9 May 2013 and
because the proposed changes were prospective and related
only to England & Wales. Also a separate process for the
development of proposals for the reformed Local Government
Pension Scheme in Northern Ireland was underway. I was not
aware of the need to advise Departmental Solicitors Office of a
prospective change in another jurisdiction and consequently
did not do so.”
28. The application to re-open the appeal was refused on 22 May 2014 and the
Northern Irish scheme was revised on 27 June 2014. The new scheme did not
remove the nomination requirement for unmarried couples. No evidence has been
offered of any contemporaneous consideration of the need to preserve this
requirement or of the desirability of amending the Northern Irish scheme so as to
bring it into line with the changes in the rest of the United Kingdom, notwithstanding
that before Treacy J and the Court of Appeal, DENI had relied on the allegedly
critical importance of parity with the England and Wales scheme.
The policy behind the nomination requirement
29. Ms Cochrane dealt with the policy objectives underlying the 2009
Regulations and, in particular, the procedural requirements for cohabitants claiming
survivor benefit in para 13 of her first affirmation, dated 21 February 2012, where
she said:
“… the decision to introduce in Northern Ireland the same
procedural requirements for claiming a survivor’s benefit was
heavily influenced by the reforms already introduced in
England & Wales. The policy objectives of those requirements
were those identified in the 2004 consultation paper issued by
the Office of the Deputy Prime Minister. They were designed
to ensure that the existence of a cohabiting relationship,
equivalent to marriage or civil partnership was established in
an objective manner and also that the wishes of the scheme
member had been identified through the execution of a valid
nomination form during his lifetime.”
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30. One can understand why the procedural requirements designed to establish
that a genuine and subsisting relationship existed had been included in the
regulations. But this does not explain why a nomination was required. If it was
shown (as, for the reasons given in para 23 above, it had to be) that there was indeed
a cohabiting relationship which satisfied the tests as to its genuineness and existence
at the time of the death, why was a nomination process needed? This added nothing
to the evidential hurdle which a surviving unmarried partner of a scheme member
had to face.
31. If the requirements in regulation 25(3) (other than the making of a
nomination) are satisfied, the only conceivable object of the nomination requirement
was to find out what the scheme member wanted. But what had those wishes to do
with the question of entitlement? It is not enough simply to state that the procedural
requirements were designed to ensure that the wishes of the scheme member had
been ascertained, in order to invest that aim with the necessary attribute of
legitimacy. The confirmation of those wishes does not have some intrinsic,
undeniable value. The purpose behind the avowed need to ascertain them must be
stated.
32. It has been said that its purpose was not to permit a scheme member to
prevent, for vindictive reasons, his cohabiting partner from receiving a survivor’s
benefit, although, on its face, it certainly had that potential. If that was not its
purpose, what then was it? DENI adopted Higgins LJ’s characterisation of the
purpose of the scheme to be “to permit some cohabitants in certain defined
circumstances to obtain the same pension provision as those who are married or in
a civil partnership” – para 17 of his judgment. DENI expressly disavowed the
legitimate aim of the regulations which Treacy J had identified viz to facilitate
entitlement without discrimination on grounds of status. What the judge had said
about the aim of the regulations appears at para 54 of his judgment:
“The aim or underlying objective of this aspect of the pension
scheme is to place unmarried, stable, long-term partners in a
similar position to married couples and those in a civil
partnership to facilitate entitlement to a pension without
discrimination on the grounds of status.”
33. DENI’s repudiation of the judge’s 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. It is especially so in light of DENI’s proper
– but inevitable – acceptance that the provision of a survivor benefit under the scheme
engages A1P1 of ECHR and that the appellant’s status, as a person who was in a
cohabiting relationship other than a marriage or a civil partnership at the time of her
partner’s death, is a relevant status for the purposes of article 14 ECHR. The judge
Page 15
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.
34. 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. Given DENI’s
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. 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 aim of the inclusion of
unmarried partners within the survivors’ entitlement. This must have been its
objective and, expressed in that way, it is no more than a rephrasing of the judge’s
formulation of the aim.
35. The error of DENI’s submission on this point and, with respect, Higgins LJ’s
characterisation of the aim of the regulations on this aspect is to confuse the aim
with the means employed to achieve it. 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. It is not
an end in itself. The essential question, therefore, is whether imposing a nomination
requirement in fact conduces to unwarranted difference of treatment or to its
removal.
36. 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. 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 nomination procedure in the case of
the cohabitant is difficult to find. If it was designed to test the truth of a claim that
the relationship was stable and long-lasting, that would be one thing. But it was not.
The obligation to establish those features of the relationship was entirely
independent of the nomination procedure. Nothing in the contemporaneous
documentation suggests that this consideration underlay its inclusion in the scheme.
37. One must therefore look elsewhere to find out why the nomination procedure
was considered to be needed. As to the averment in Ms Cochrane’s affirmation that
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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 provides no explanation as to why “nomination would or should
be evidentially required”. The 2004 paper is of no assistance, therefore, as to any
objective which the nomination procedure might achieve. 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. 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.
Post hoc justification for the nomination requirement
38. In para 15 of her first affirmation, Ms Cochrane alluded to the formal
dimension that the nomination procedure brought to a claim for survivor’s pension.
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.
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 individual’s legal status. 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
independent verification of the deceased’s wishes.”
39. 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. They must nevertheless be considered now in order to see
whether they support the claim as to the reasonableness and proportionality of the
measure. The value of “formality” in this setting is not explained. 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. The same may be said of the circumstance that
cohabitation does not involve a change in legal “status”. It is in the very nature of
cohabitation that there is no legal formality or change of status involved. But there
Page 17
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 cohabitant’s
entitlement to a survivor’s pension. That entitlement derives from the survivor
having been in a longstanding relationship with the scheme member. 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 the scheme’s requirements. There was
no further need of proof beyond this. On the question of the verification of the
deceased’s wishes, I have already made clear in paras 31-36 above why I do not
consider that this is a relevant consideration.
40. Before the Court of Appeal, both respondents took up the theme of
testamentary significance, which had been foreshadowed in Ms Cochrane’s
affirmation. 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. 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).
41. The need for a formal or public affirmation is not explained. Certainly, in this
context, it has no inherent value. It does not, of and in itself, make the survivor any
more deserving of the pension. 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. Being required to
make a public declaration that these conditions obtain adds nothing to the objective
inquiry as to whether they in fact exist.
42. 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. No evidence to support those claims was
presented to the Court of Appeal and the arguments were not pursued before this
court. 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.
43. 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
Page 18
dependent on or financially interdependent with the deceased. It is also evident that
no intrinsic value attaches to the making of such a nomination.
The areas of agreement
44. It is not in dispute that the denial of a survivor’s pension falls within the ambit
of A1P1 which 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.”
45. 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 obtaining
effective enjoyment of a property right. It does not, however, guarantee the right to
acquire property (see Kopecký 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)).
46. 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
partner’s 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, 107
and 132). 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”.
47. 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. The single area of dispute between the parties, therefore, is
Page 19
whether the interference with the appellant’s right to property has been “objectively
justified” – see para 13 of Higgins LJ’s judgment.
The proper approach
48. The starting point in the analysis of whether there is objective justification
for interference with the appellant’s right to property must be the duty of the state to
“secure” her entitlement to equal treatment. Unlike, for instance, the duty under
article 8 of ECHR, which enjoins the state to respect the citizen’s 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.
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. 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 means
employed and the aim sought to be realised: para 33. 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. The duty to
secure rights calls for a more proactive role than the requirement to respect rights.
49. 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. That is not to say, however, that
the court should substitute its view for that of the decision-maker. 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. 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 the same household for
a period of two years immediately before the date of death, it was held that
Parliament was better placed than the courts to appreciate what was in the public
interest on an issue of socio-economic policy (para 24).
50. 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. In such circumstances, the court’s role in
conducting a scrupulous examination of the objective justification of the impugned
Page 20
measure becomes more pronounced. 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 relevant under the Convention?
The court is then deprived of the assistance and reassurance
provided by the primary decision-maker’s ‘considered opinion’
on Convention issues. The court’s 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.”
51. 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”. Ms Mountfield QC, who appeared for the appellant, has argued that those
factors must be judged on their own terms. They should be given only such weight
as their cogency and any supporting evidence warrant. 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 body’s constitutional responsibility for taking the decision, because
the factors advanced post hoc did not form any part of the reasoning behind the
body’s discharge of its function.
52. I am not prepared to accept this submission without qualification. 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 decisionmaker when the particular scheme was devised. 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.
53. 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 comes to general measures of economic or
Page 21
social strategy. 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 legislature’s policy choice
unless it is ‘manifestly without reasonable foundation’.”
54. 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 Work and Pensions) where at para 11 Lord Reed, having cited
the test enunciated in Carson v United Kingdom (2010) 51 EHRR para 13, stated:
“That approach was followed by this court in Humphreys v
Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR
1545, where Lady Hale stated at para 19 that the normally strict
test for justification of sex discrimination in the enjoyment of
Convention rights gives way to the ‘manifestly without
reasonable foundation’ test in the context of welfare benefits.”
55. I am prepared to accept for the purpose of this appeal that the test to be
applied is that of “manifestly without reasonable foundation”. 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. 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. 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.
56. 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 person’s 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. The judgment was also cited in support of the “brightline” 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.
Page 22
57. These principles, well-recognised as they are, depend heavily on the context
in which it is sought to apply them. As it happens, I have no difficulty in accepting
that each is worthy of close consideration in this case. 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. To set the scene
for that examination, it is necessary to look at some passages from Lord Sumption
and Lord Reed’s dissenting judgment.
58. 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. But I accept that statements made
concerning that status may apply to the present case where the status is one of
cohabitant. At para 74 of the joint judgment, Lord Sumption and Lord Reed said:
“The Strasbourg court has accepted that a person’s immigration
status can be an ‘other status’ for the purpose of article 14: Bah
v United Kingdom (2011) 54 EHRR 773, paras 45-46. 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:
‘The nature of the status on which differential treatment
is based weighs heavily in determining the scope of the
margin of appreciation to be accorded to contracting
states … Immigration status is not an inherent or
immutable personal characteristic such as sex or race,
but is subject to an element of choice … While
differential treatment based on this ground must still be
objectively and reasonably justified, the justification
required will not be as weighty as in the case of a
distinction based, for example, on nationality.’”
59. 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). The appellant’s status is one
which she chose and not one with which she was born or which she could not avoid.
Unquestionably, that circumstance alters the approach that one takes to the
difference in treatment to which she was subject vis-à-vis a married or civil partner.
But should that bring about a markedly more benevolent review of the imposition
Page 23
of the nomination requirement? After all, the essential purpose of the change in the
scheme brought about by the 2009 Regulations was to include persons such as the
appellant. Moreover, it was necessary for the authorities to bring about that change
in order to secure her entitlement to equal treatment and, incidentally, to comply
with their obligations under ECHR and the Human Rights Act 1998. The reason that
it was decided to include the nomination requirement was to make the scheme
congruent with that in England and Wales. No independent evaluation of the need
for this particular procedure was undertaken. It was not present to the mind of the
decision-maker that a wider discretion was available because the status of those
affected was not “an inherent or immutable personal characteristic”. For all these
reasons, while this is a factor that should not be left out of account, it does not weigh
heavily in the assessment as to whether the discrimination is “justifiable and
proportionate to its objective”.
60. On the bright-line rule argument, the respondents relied on para 91 of Lord
Sumption and Lord Reed’s judgment:
“The advantages of a clear rule in a case like this are
significant. It can be applied accurately and consistently, and
without the element of arbitrariness inherent in the
discretionary decision of individual cases. By simplifying
administration it enables speedy decisions to be made and a
larger proportion of the available resources to be applied to
supporting students. Young people considering applying to
universities need to know whether they will get a student loan
or not. The Student Loan Company, which administers the
scheme, needs to process a very large number of applications
for loans in the relatively short interval between the acceptance
of a student by a university and the start of the academic year.”
61. The contrast between the situation in Tigere and the present case is
immediately obvious. The authorities in Tigere had identified the difficulties in
administration which they claimed would beset the student loan scheme if those
whose immigration status was uncertain were included in it. That was central to the
policy decision. The volume of applications for loans called for a clear rule, it was
claimed, even though this might cause hardship in individual cases. This was a
thought-through approach to what the authorities apprehended would be a
considerable logistical problem.
62. In the present case, no thought was given to possible difficulties with
administration that might arise if the nomination procedure was not included in the
new scheme which the 2009 Regulations introduced. Indeed, even after the
appellant’s challenge was made, DENI has not been able to produce tangible
Page 24
evidence that there would be significant problems in administering the scheme if the
nomination requirement was abandoned. Vague suggestions as to the workability of
the scheme and the advantages of actuarial predictions were made but these were
not supported by evidence. It is also significant that in England and Wales, where a
significantly greater number of applications require to be transacted, it is considered
that the nomination procedure is not necessary. I consider, therefore, that the
desirability of a bright-line rule is, at most, of marginal significance in this case.
63. On the argument that a broad margin of appreciation should be afforded to
the decision to include the nomination procedure because it fell within the socioeconomic sphere, the respondents relied on paras 75 and 76 of Lord Sumption and
Lord Reed’s judgment in Tigere, which quoted from a passage in Stec already
referred to above at para 53.
“75. Student loans are provided out of public funds on terms
which are much more advantageous to students than any
commercial alternative. They are a form of state benefit. Such
benefits are almost invariably selective and the criteria for
selection necessarily involve decisions about social and
economic policy and the allocation of resources. For this
reason, discrimination in their distribution gives rise to special
considerations in the case law of the Strasbourg court. The test
is to be found in the decision of the Grand Chamber of the
European Court of Human Rights in Stec v United Kingdom,
43 EHRR 1017, para 52:
…
76. Commenting on this test in R (RJM) v Secretary of State
for Work and Pensions [2009] AC 311, Lord Neuberger (with
whom Lord Hope, Lord Walker and Lord Rodger agreed)
remarked on its practical implications, observing that
‘the fact that there are grounds for criticising, or
disagreeing with, these views does not mean that they
must be rejected. Equally, the fact that the line may have
been drawn imperfectly does not mean that the policy
cannot be justified. Of course, there will come a point
where the justification for a policy is so weak, or the line
has been drawn in such an arbitrary position, that, even
with the broad margin of appreciation accorded to the
Page 25
state, the court will conclude that the policy is
unjustifiable.’
The test was reviewed and reaffirmed by this court in
Humphreys v Revenue and Customs Comrs [2012] 1 WLR
1545, paras 15-21 (Baroness Hale of Richmond JSC). It has
recently been applied by this court in R (SG) v Secretary of
State for Work and Pensions (Child Poverty Action Group
intervening) [2015] 1 WLR 1449, paras 11, 69 (Lord Reed
JSC).”
64. Where a conscious, deliberate decision by a government department is taken
on the distribution of finite resources, the need for restraint on the part of a reviewing
court is both obvious and principled. Decisions on social and economic policy are
par excellence the stuff of government. But where the question of the impact of a
particular measure on social and economic matters has not been addressed by the
government department responsible for a particular policy choice, the imperative for
reticence on the part of a court tasked with the duty of reviewing the decision is
diminished. In this case, DENI was not concerned about socio-economic choices
when it decided to mimic the nomination requirement that was in place in England
and Wales. It was motivated solely by the desire to maintain consistency between
the two schemes. Of course, after the appellant’s challenge materialised, the
department addressed possible advantages that might accrue if the nomination
requirement was maintained and, as I have said, these are not to be dismissed solely
because they are the product of hindsight – nor even because they have been put
forward post hoc as a possible justification for discrimination in reaction to the
appellant’s claim. But the level of scrutiny of the validity of the claims must
intensify to take account of the fact that the claims are made ex post facto and the
claimed immunity from review on account of the decision falling within the socioeconomic sphere must be more critically examined.
65. A suggestion that any matter which comes within the realm of social or
economic policy should on that account alone be immune from review by the courts
cannot be accepted. It must be shown that a real policy choice was at stake. While it
is not essential that the policy options were clearly in play at the time the choice was
made, obviously, when they were, the cause for reluctance by courts to intervene is
enhanced. In the present case, however, for the reasons earlier given, not only were
socio-economic factors not at the forefront of the decision-making process at the
time that the decision to include the nomination procedure was made, but the attempt
to justify retention of the procedure on those grounds was characterised by general
claims, unsupported by concrete evidence and disassociated from the particular
circumstances of the appellant’s case. I do not consider, therefore, that this is a factor
of any significance in this instance.
Page 26
The test for proportionality
66. The test for the proportionality of interference with a Convention right or, as
in this case, the claimed justification for a difference in treatment, is now well settled
– see the judgments of Lord Wilson in R (Aguilar Quila) v Secretary of State for the
Home Department [2011] UKSC 45; [2012] 1 AC 621 at para 45, Lord Sumption in
Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 para 20 and
Lord Reed in Bank Mellat at para 74. As Lord Reed said,
“… it is necessary to determine (1) whether the objective of the
measure is sufficiently important to justify the limitation of a
protected right, (2) whether the measure is rationally connected
to the objective, (3) whether a less intrusive measure could
have been used without unacceptably compromising the
achievement of the objective, and (4) whether, balancing the
severity of the measure’s effects on the rights of the persons to
whom it applies against the importance of the objective, to the
extent that the measure will contribute to its achievement, the
former outweighs the latter.”
67. For the reasons earlier given, I consider that the objective of the particular
provisions in the 2009 Regulations which are involved here must have been to
remove the difference in treatment between a longstanding cohabitant and a married
or civil partner of a scheme member. To suggest that, in furtherance of that objective,
a requirement that the surviving cohabitant must be nominated by the scheme
member justified the limitation of the appellant’s article 14 right is, at least, highly
questionable. Be that as it may, I consider that there is no rational connection
between the objective and the imposition of the nomination requirement and that
this also fails to meet the third and fourth standards in Lord Reed’s formulation.
Conclusion
68. I would allow the appeal; make a declaration that the requirement in the 2009
Regulations that the appellant and Mr McMullan should have made a nomination be
disapplied; and that the appellant is entitled to receive a survivor’s pension under
the scheme.
