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Paper following dismissal of the Carson Appeal
by Brian Havard
It cannot be denied that rejection of the Appeal was a devastating blow, not so much the fact as the manner of it. BAPA must realistically appraise its possibilities and the potential for action. While there is an opportunity for new political initiatives both in Britain and on the Continent, they can only be subsidiary to and supportive of legal action. This is the first of a series of papers which will be issued for each aspect.
A. PROSPECTIVE LEGAL ACTIONS
1. Launching an application for judicial review of the legislation giving rise to pensions discrimination based on Age Discrimination in Australia. Since in rejecting the Carson case the Appeal Court judgment relied heavily on what it alleged were the differing economic circumstances in each of the countries where pensions are frozen, this can be readily obviated when the discrimination occurs in the same country. This application for judicial review will only proceed if our legal advisers are satisfied that we have a strong enough case, and subject also to the chosen individual applicants securing legal aid which will both help meet the legal costs and protect them from having HMG costs assessed against them.
2. Pressing home the several outstanding actions under the DWP Appeals procedure, all of which were rejected by Tribunals and are now awaiting decisions on an appeal to a Commissioner (who ranks with a High Court judge). Naturally the Court Service will try to steamroller our appeals by citing the Carson Appeal Court rejection. The European Court of Human Rights in Strasbourg must be persuaded that rejection by successively a Tribunal and a Commissioner completes the Convention requirement in Article 35 "Admissibility Criteria"
1. ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken."
The pensioner argument must be based on Article 6 – "Right to a fair trial"
1." In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . . "
We must contend that our ‘entitlement to a fair and public hearing’ is thwarted by the immense cost of legal proceedings, as witness a South African pensioner whose own costs amount to some 37 years of the current basic UK pension (£77.45 per week), but would be 428 years for a 95 year old whose pension is frozen at £6.75 a week. Moreover the English court has levied Government costs on the South African requiring a further 18 years and 9 months to pay off. It is the antithesis of ‘fair’ when the private citizen must match his pitiably small means against the inexhaustible funds of the state. An application for legal aid by frozen pensioners in Zimbabwe has been rejected by the Legal Services Commission, responsible for dispensing legal aid. The Council of Europe and the European Court of Human Rights must grasp the nettle of costs by accepting that a private citizen who has of necessity taken his social security grievance through the free DWP Appeals procedure up to rejection by a Commissioner must be considered as having "exhausted domestic remedies". To achieve this outcome requires political action in the Council of Europe.
3. Subject to the assessment by our UK legal advisers on the potential of an application for judicial review in the English High Court based on Age Discrimination, the only court where frozen pensioners may expect their case to be heard dispassionately is the European Court of Human Rights in Strasbourg. This could be achieved by the restoration of my own application under Convention Article 37.2, and/or by taking one or more of the DWP appeals to Strasbourg, and/or by taking some entirely new initiative. The quickest would be the first option (if we can kindle in the Strasbourg authorities a feeling of remorse at their failure to consider Gaygusuz when rejecting my application), the second would take a year or so, while the third would require several years. This is however not an argument for not starting it. HMG is cock-a-hoop at having won the Appeal; it must be shown that there is a relentless tide of actions coming down the track, never ceasing until they abandon the inequity.
B. PROSPECTIVE POLITICAL ACTIONS
1. In the UK there is already under way an action targeting senior bureaucrats. Derrick Prance is engaged in battle – primarily over SERPS - with the top dog at DWP, Sir Richard Mottram, while James Nelson is organizing a wider action.
The concern in this paper is with the politicians, MPs and Lords/Ladies, not through any belief that there are the numbers to achieve a breakthrough, but because we must continue probing for weaknesses and looking to re-build a support base. For the past several years the position has been hopeless because of the huge Labour majority, but now the cracks are beginning to appear as will be set out in detail on the relevant Position Paper.
In short, Tony Blair is no longer the Golden Boy in Westminster. He seems to have set his sights on Europe – there can be no other explanation of his remarkable announcement that the centuries-old office of Lord Chancellor would be abolished and Britain would at last enjoy a true separation of powers between the Executive and Judiciary. No actual evidence can ever be forthcoming but the suspicion must be that this incestuous relationship has occasioned much of the undue deference by the Courts to the Parliament, even when it is obvious to the fair-minded man-in-the-street that the legislation is in place is grossly inequitable.
2. In Europe the Position Paper will call for a mail campaign targeting the top office-bearers at the Council of Europe (CoE) and the thirty Westminster MPs who form the UK delegation to the CoE Parliament (not to be confused with the European Parliament and its separately elected MEPs), the objective being
- to drum up support for our bid to have rejected DWP Tribunal/Commissioner cases heard in the ECtHR in Strasbourg without the requirement of going through the impossibly expensive UK court system.
- to respond to the blatant anti-Convention(HRA) bias in the English courts by having my Application restored to the Lists followed by re-hearing the case taking Gaygusuz and other precedents into account.
We have suffered a severe blow – but we have had that experience all too often. We frozen pensioners have given our Mother-country every chance to demonstrate its sincerity in passing the Human Rights Act in order to bring the European Convention right into the heart of the UK judicial system, in particular to demonstrate its compliance with Article 6, the entitlement to a fair and public hearing. It has failed miserably.
HMG lawyers have predictably used every artifice in the book to produce the desired result – and the Courts have pandered to their every wish, using selective quotations, sophistry, casuistry and equivocation as has been revealed in Position Paper 2, the analysis of the Appeal Judgment. On the evidence before the Court, the diametrically opposed judgment could (and should) have been brought, but it had evidently been decided from the outset that the Government must prevail. It is impossible to say whether this was due to undue deference to Westminster or simply that the appellant failed to touch the heart-strings – and the strategy of introducing the cost of living in South Africa was strawberries to the HMG legal donkey.
Now we must show our anger. An encouraging development of late has been the emergence among our members of powerful letter-writers. They are invited to study this series of papers, choose their topic, and tell their own story in addressing themselves to the suggested targets – or any others of their own choosing.
Let us show HMG that the battle has only just begun.
Position Paper following dismissal of the Carson Appeal
by Brian Havard
Analysis of Appeal Judgment (Numbers in brackets refer to paragraphs in the judgment)
‘ . . marks a change in the constitutional relationship between citizens
and the state. . . makes rights from the European Convention on Human Rights
into a form of higher law in the United Kingdom. . . now all state bodies,
including the courts must act in accordance with the Convention rights when
making decisions which affect you. If they interfere with these rights, they
will have to be able to justify that interference in accordance with the new
a).the claim to be following a consistent line of Strasbourg authority. (19) Citing precedents:
- Marckx . Article (P1-1). .does not guarantee a right to acquire possession’. (18) fails to quote the whole sentence as in: ‘. . .does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions’. The Marckx case concerned bequeathing and inheriting property. Since a testator could change the will at any time, obviously Article P1-1 could not guarantee the acquisition of possessions by an heir presumptive. This concept is leagues away from the payment of contributions to a pension fund creating an entitlement not to one single payment but to a stream of income for the rest of one’s days. If this were not the case, the Gaygusuz judgment, which the Appeals Court reluctantly acknowledged, would make no sense.
- X v Italy. .’the claimant had not satisfied the requirements under his domestic law’ (19). Suppressed is: ‘ In order that such a right may be established (for protection by Art1 P1), it is necessary that the interested party should have satisfied domestic legal requirements governing the right, in principle, to an annuity. Such requirements generally include a minimum number of years of contribution. In the present case, the applicant had not fulfilled these conditions, as he was dismissed before attaining the required seniority’. Frozen pensioners have all paid their contributions, rendering the precedent inapplicable.
c) . . primary legislation is entirely geared to the impact of price inflation in the UK (64)
Laws LJ argued that uprating has a specific rationale relating only to UK-resident pensioners, therefore expatriates were not true comparators, consequently there was no obligation to uprate their pensions. The contention is flawed both in law (Aston Cantlow) and logic. Frozen pensioners already suggested overcoming this ‘objection’ by accepting that expatriate pensions should be a function of price inflation and the exchange rate in their various countries of residence. DWP made no response because it would obviously be an enormous administrative burden. Since inflation rates in OECD countries – UK, EU, USA and major Commonwealth countries where 90% of frozen pensioners live – tend to equate over time, the optimum solution is to apply the UK rate to all pensions. This has already been adopted for half the expatriates. It is impermissible to use it as an objection to uprating the remainder.
d) Whether a reciprocal Social Security agreement with another country is entered into depends on . . the extent to which the advantages to be gained. . outweigh the additional expenditure likely to be incurred by the UK. . (55 – 18)
This DWP statement, unquestioningly accepted by the Court, sets out starkly the single credible reason for denying us our uprating entitlement – to save money, in order, DWP says, to concentrate available resources, including those confiscated from us, on UK-resident pensioners. The political logic is clear; those UK-resident pensioners, being one third of the electorate, can swing an election outcome. Ministers have conceded and the Social Security Committee confirmed that bi-lateral agreements are unnecessary; hence they are irrelevant.
e) . . the circumstances of Ms Carson and her chosen comparators are not so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the withholding of the pension uprate in the cases where it is withheld. (63)
Laws LJ’s difficulty in determining what the Appellant had in common with other pensioners, whether frozen or not, would ‘in the mind of a rational and fair-minded person’ be dismissed as contrived. Having asserted (59) that "it would be absurd if it were suggested that Ms Carson’s appropriate comparators were all other UK pensioners resident in countries where uprate is not paid", Laws LJ went on to maintain (60) "Whether the chosen comparator is in an analogous or similar situation is a question of fact which the party alleging discrimination must establish on the facts . .". Nowhere is there any mention of the manifest fact, central to the issue, of what all the comparators have in common, namely that they had all paid fixed contributions into the National Insurance Fund.
This most fundamental flaw alone invalidates the whole judgment, but the court went further.
With tortuous argument and convoluted logic, having conceded that the Appellant had a right of possession under Art 1P and that Art 14 required any discrimination to be justified, the Court admitted a difference of treatment between pensioners in different countries but by-passed an inevitable conclusion of discrimination by moving straight to the question of justification – only to assert that no justification was called for since economic circumstances in each country were different. (48) This is another impermissible argument which DWP has never once advanced, thus the court was itself practicing discrimination in applying to frozen pensioners criteria not applied to those in indexed countries. How many ‘rational and fair inded persons’ did the Court consult? Among the dozens who responded to the BBC invitation for comments – all bar one castigated the judgment in scathing terms.
The Court stretched common sense to an extreme in citing Burnton J (61): " A pensioner resident abroad may be better off, in real terms, than a pensioner living in Great Britain, because of different local costs of living which are not fully reflected in exchange rates.
Such a rarity would only serve to prove the general case. Pensioners of whatever age in the UK together with half the expatriates, get £77.45 a week basic pension for a complete contribution record. So also would a 65 year old newly arrived in Australia. William Hayes, 95 years old, in the same country, with the same cost of living and exchange rate, gets £6.75. No manipulation of living costs or exchange rates can conceal the reality of the inequity.
The Appeal was conducted in such manner as to achieve a pre-determined result: "the distribution of state benefit lies peculiarly within the constitutional responsibility of elected government".
The Appeal judgment quoted Burnton J freely and with approval with one notable exception, probably because Burnton J had his facts wrong. The European Court of Human Rights has rightly maintained that, in a dispute like ours between half a million citizens and their Government, guidance should be sought from the practice of peer countries, especially relevant being that of the major European countries. The UK Government itself endorsed the concept in its Study Guide to the Human Rights Act at paragraph 3.3: ". . the Court looks to see whether there are common European standards."
The UK stands alone among OECD including European countries in pursuing a policy of pensions discrimination targeting its own citizens. Germany, whose ‘Basic Law’ (the written Constitution) closely equates to the European Convention, has established principles to be applied in matters of expatriate pensions which totally negate the UK stance. In Case No. 1BvR 111/74 and 283/78 20 March 1979, the German Constitutional Court determined:
According to Article 3, Para 1 of the Basic Law, the Government must not arbitrarily treat unequally what is basically equal.
The unequal treatment of insured people, who through equal contributions have achieved an equal legal foundation and an equal insurance entitlement, cannot be reconciled with the Basic Law.
The Government cannot withhold an insured person's entitlement resulting from payment of contributions, in order to achieve other objectives.
The question whether, when and for what reason a reciprocal social security agreement can be sought or concluded, lies completely outside the sphere of the insured person.
What makes the regulation unconstitutional is its blatant unreasonableness.
BAPA activists need to be aware of the fallacious reasoning which has resulted in rejection of the Carson Appeal and may wish to use this paper in whole or part when making written protests to Ministers and MPs or invoking support from such UK organizations as Age Concern, Help the Aged, the National Pensioners Association and the Trade Unions.
In particular they should demand confirmation from DWP that economic differences in inflation and exchange rates, an argument used by the court to excuse DWP from having to provide a justification for the discrimination, were taken into account when determining the countries where uprating should apply. The Department should be required to furnish copies of the associated calculations in respect of each country where UK pensioners reside. There are of course no such papers, which will prove that the English Court has dismissed the frozen pensioner case on the basis of an argument which the Department itself cannot support.
Finally, strong protests must be made to the new Secretary of State for the Constitution and Lord Chancellor Lord Charles Falconer at the court’s contemptuous dismissal of the undertakings we were given about the benefits to be derived from the Human Rights Act (see first paragraph of this paper). Laws are not just for judges, they are for the people, but their daunting complexity of language frequently makes them incomprehensible. The Government was to be complimented on issuing a Study Guide to explain in layman’s terms what protection the Act would provide.
Two clauses in the Study Guide are particularly relevant:
3.116 All sorts of things can count as property. Land is property. So is a lease on a house or flat.
Even a right to claim a social security benefit can be property if you have contributed for it through national insurance.
A court has the obligation under the Human Rights Act to assert the rights of citizens even though it would obviously result in the Government having to provide funding. It is a measure of the extent to which the Appeals Court abrogated its responsibility in stating (72):
If the judges are to confine and circumscribe the elected government's economic policies to the tune suggested here, it could only be upon a legal imperative far more pressing than anything we have listened to in this case.
3.64 Under the Human Rights Act the right to a fair trial under Article 6 may be relevant to areas such as:
the availability of legal aid in certain kinds of cases
The South Africans were mistaken in not applying for legal aid, but that is no justification for the court imposing penal costs on the Appellant. In a case involving over 400,000 British citizens who each stand to benefit on average by £1000 (based on DWP estimated annual cost of £400mn p.a.), the cost of litigation (at perhaps £100,000 through High Court to Appeal Court) is obviously way beyond the possibilities of an individual pensioner, even before costs (estimated at £75,000 in the Carson case) are imposed.
The Lord Chancellor should be called on to:
BAPA Position Paper following dismissal of the Carson Appeal
by Brian Havard
Potential Political Activity in the UK
This paper comprises:
- a summary of the frozen pensioner complaint which may be used as the basis for a letter
- some objectives of a mailing campaign to the UK
- some target recipients of such letters
Summary of frozen pensioner complaint
Half Britain’s expatriate pensioners are rightly paid uprated pensions proportionate to their contribution record, just like UK residents. The other half, mainly in Commonwealth countries, are denied annual uprating, their pensions frozen at the basic rate which applied when first they qualified or emigrated as existing pensioners. With the basic pension for a complete contribution record now £77.45 a week, a ‘frozen pensioner’ aged 75 is paid £56.10, an 85 year old receives £34.05, while a 95 y.o. gets a pittance of £6.75, yet all have paid the same contributions. This is discrimination by country of residence and by age, both breaching the Human Rights Act (HRA).
In recent hearings of a pensioner application for judicial review of this pensions policy, the High Court and the Appeal Court both admitted that the payment of contributions creates a property right, following which the logical consequence should have been to identify the denial of uprating to some expatriates as discrimination requiring justification. But in a remarkable judgment, the Appeal Court asserted that differences in the economies of countries frustrate a comparison between one pensioner and another, therefore the Government need provide no justification. The courts failed to recognize that;
- uprating is already paid to half the expatriates in 38 countries with widely differing economies
- the Government has never excused its policy on the basis of different economic circumstances
- frozen pensioners can justly claim all other pensioners as comparators since all paid the same contributions
Both judges admitted their shared belief that courts must not interfere with what they perceive as the Government’s prerogative to determine how public funds are disbursed. While this is uncontested in issues involving social welfare funded by taxes, it is inapplicable to social insurance where pensions are funded by and proportionate to contributions. More particularly, the courts which dismissed the pensioner appeal ignored an undertaking by the Home Secretary whereby: ‘The Human Rights Act makes rights from the European Convention on Human Rights . . into a form of higher law in the United Kingdom. . . now all state bodies, including the courts . . must act in accordance with the Convention rights when making decisions which affect you’. In passing responsibility back to Parliament, these courts were making a political statement.
In February 2003 the Council of Europe, guardian of the Convention and parent body of the European Court of Human Rights, heard a complaint that the British judicial system, headed by a politician, the Lord Chancellor, was in fundamental breach of Article 6 of the Convention which stipulates that a citizen with a civil rights grievance is entitled to: ‘a fair and public hearing . . by an independent and impartial tribunal . .’. British courts appear to be susceptible to political influence, therefore their independence and impartiality are at best suspect, and indeed the courts in the pensioner case, repudiating HRA, explicitly declared the issue to be political, not legal.
The Prime Minister’s announcement, abolishing the office of Lord Chancellor and the creation of a Supreme Court and an independent body to appoint and promote judges, tacitly corroborates pensioner complaints that the dismissal of the pensioner application for judicial review was a political act incompatible with the Convention. Parliament must demand a public enquiry into the inconsistent manner in which the Human Rights Act has been implemented in the English courts, with particular reference to the flawed judgment in the pensions discrimination issue.
Volunteer letter-writers may wish to use some or all of the fore-going but they should employ their own words and show if possible how the issues raised relate to their own circumstances.
i) RtHon Jack Straw who when Home Secretary gave the undertakings in the Preface to the Study Guide to HRA
ii) the new Lord Chancellor Lord Charles Falconer of Thoroton QC who now heads the Department which has responsibility for implementing HRA
iii) the Ombudsman (through an MP)
iv) the Law Council, Civil Justice Society,
v) Pressure groups such as Charter88, Justice, Age Concern, Help the Aged, Parity, Liberty (Human Rights Litigation Unit), Child Poverty Action Group
In the Commons
Labour: Disaffected ex-Ministers Michael Meacher, Robin Cook, Clare Short, Frank Field, Barbara Roche; Commons leader Peter Hain (has repeated calls for social justice focus);
Labour Old Guard; Alan Milburn MP until recently Health Minister and one-time strong supporter
Conservative Front Bench, especially David Willetts, and backbench supporter Peter Bottomley
LibDems Steve Webb (social security spokesman), Nigel Jones
Minor Parties esp Ulster Unionists, Welsh Nationalists
Select Committee on Work and Pensions; Social Security Advisory Committee
In the Lords
Baronesses Greengross, Emma Nicholson, Shirley Williams, Earl Russell, Lords William Goodhart, Anthony Lester,
Top bureaucrats, mainly of DWP (eg Sir Richard Mottram) and LCD (eg Mr Edward Bowles, Head of Domestic Policy, Human Rights Unit, Lord Chancellor’s Dept)
Pensioner Federation, Trade Unions, University Legal Faculties
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