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BEH 1997 ECHR APPLICATION - PREAMBLE

Copy of cover sheet of Brian Havard's application to the ECHR
BH particulars as entered on the form:
Annex to the Application
BH letter of application 971121
BH letter to ECHR 980803
ECHR letter - Phillips 980827
Extract from 9776/82
BH letter to ECHR  980918
ECHR letter 980930
The Decision 981022
ECHR - Covering letter to the decision
BH letter to ECHR 990105
Letter from ECHR 990129
Brian letter 990209
Letter from ECHR 990301
Unexplained letter from ECHR
Supplementary support from Convention Articles
A Question put in the House of Lords - and the answer received
Extract from the Carson judgment

BEH 1997 ECHR APPLICATION - PREAMBLE

Purpose

This segment of the website with restricted access contains the file of my 1997 application to ECHR. It, together with the supporting documents, will enable the Committee to take a view about the prospects first of having it restored to the ECHR lists, then of winning a favourable decision. These prospects have to be weighed against the chances of the Carson appeal succeeding when we have evidence of the Govt’s determination to exploit every loophole in the Human Rights Act, as witness the Lord Chancellor’s stance:

Question: "Whether HM Govt stand by the assurance given in the preface to the Home office published study guide to the HRA that the "act is a form of higher law in the UK, that is that it has primacy over any domestic legislation which may conflict with the rights and freedoms guaranteed by the ECHR which Britain had ratified in 1951"

Answer: "The HRA provides that so far as it is possible to do so legislation must be read and given effect in a way which is compatible with the Convention rights. This applies to all primary and secondary legislation whenever enacted. To that extent, the HRA may be described as a form as higher law. However the HRA provides that the validity continuing operation or enforcement of primary legislation of the UK Parliament is unaffected by any incompatibility with the Convention rights. In this way the Act unequivocally preserves Parliament's ability to pass bills that are or may be in conflict with the Convention"

Clearly it would be a major set-back if the Carson judgement were to remain as an adverse precedent, but the indications are that there is adequate funding already available (i.e. from the Canadian govt). BAPA’s slender current resources would make little difference and a token contribution will score us no more points than the $10,000 already subscribed.

There is yet a third option, to pursue aggressively (and with such cash resources as are available to us) the Age Discrimination allegation which has received a major boost with the UK Govt admission in the Reynolds case:

"24. . . . . The Defendant concedes that age is a type of "other status" within the meaning of Article 14. . . ." Many doubted the applicability of ‘age’ – now it is firmly established.

Our resources should be husbanded until we see more clearly the most advantageous strategy.

History

The application met with general approval when it was written, but there are many changes I would make if I were writing it today, in particular in my letter 18 September 1998 replying to the one from Phillips 27 August where he signalled his decision to dismiss my application based primarily on the 9776/82 precedent. I had tried in my application to block any such objection (tenth paragraph of Section 14, Statement of Facts) but I see now it was too weak. My letter 18 September should have seized on the gross mis-conception in para 2 under Summary of Facts in the 9776/82 extract Phillips sent me:

"Pursuant to the Social Security Agreement between the United Kingdom and Australia, they will continue to receive their British retirement pension, but without the cost of living indexed increases. Once in Australia, they will be entitled, in principle, to a pension under the Australian scheme, minus the British pension, but will not actually receive that until they are 70 years old. After a ten year period of residence in Australia the Australian and British pensions become cumulative."

That should have been blown apart – wisdom after the event (James had not then made his study!).

But my biggest regret is omitting Gaygusuz from the main application – I was saving it for use by a skilled lawyer who would plead my case in court (I was convinced that I would be granted legal aid). Nevertheless I did include Gaygusuz (fleetingly) in my letter 18 Sep 1998, and Phillips in his 30 Sep confirmed it had been included in the file. Yet neither Gaygusuz nor any of the other developments since the 1982 adverse judgement which I had listed was mentioned in the Decision document dismissing my application.

Relevance

Govt lawyers must have appreciated the danger of Gaygusuz to their case for Burnton was briefed to assert that it was of no benefit to Carson since it had been of no avail to me in my application. Yet Burnton went on at great length about the absence of any reasons for my dismissal. There is not a shred of proof that the Commission of three judges ever considered Gaygusuz when my application was before them. I believe that Phillips as Case Officer provided them only with the content of his letter 27 Aug 98 to me – for that is what they quoted verbatim in their dismissal notice. Please study carefully this extract from Carson:

EXTRACT FROM CARSON JUDGEMENT for Graham Ross

Supplementary support from Convention Articles

Implications

If the Committee shares my belief that there are good prospects of having my ECHR application restored, and – with a top lawyer in tow – of winning an eventual case (in which we could add all the other favourable precedents which have arisen in the meantime, we should start an immediate intensive study – and keep our cash in the bank.

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Copy of cover sheet of Brian Havard's Application to the ECHR

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BH particulars as entered on the form:

A  The applicant:

1  Family Name:    Havard            First name:    Brian Edward

3  Nationality:        British            Profession      Retired

5  Date & place of birth:      28th January 1926; Shrewsbury, United Kingdom  

6  Domicile:            4 Braemar Tce, Stirling, South Australia 5152

7  Telephone No:    (061) 8 8370 9340

13 The name of the country against which the application is directed:

            United Kingdom of Great Britain & Northern Ireland

The rest of the 8 page form refers the reader to the information in the annex to the application which follows:

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Annex to the Application

ANNEX TO APPLICATION FORM 02 330 REFERENCE: PK 8634

I THE PARTIES

A. THE APPLICANT

1. HAVARD 2. Brian Edward

3. British 4. Retired

5. 28 January 1926, Shrewsbury, United Kingdom

6. 4 Braemar Terrace, Stirling, South Australia 5152.

7. (061) 8 8370 9340

8. As above

9. None

10. N/A

11. N/A

12. N/A

B. THE HIGH CONTRACTING PARTY

13. United Kingdom of Great Britain & Northern Ireland

II STATEMENT OF THE FACTS

14. On the grounds of my residence in Australia, the United Kingdom denies me a full state retirement pension calculated on the basis of my contributions, which is the arithmetic method strictly applied to 97% of all pensioners including half the expatriates. Background facts are:

In April each year, the amount of basic pension from the previous year is uprated by the price inflation index to create the new basic pension for the current year. The higher pensions level is funded by increasing from time to time the mandatory contributions into the state pension fund of all those in employment.

Fifty years ago when expatriate pensioners were few and inflation was nominal, Parliament enacted legislation permitting pensions payment overseas, but excluding annual uprating unless specifically authorised.

In the mid-fifties Australia, seeking rapid population expansion, began subsidised migration schemes from UK. An agreement was negotiated with UK to provide emigrants with basic social security protection, including age pensions. The fundamental incompatibility of the two systems was ignored. Britain has a contributory system with pension payments directly related to contributions, in effect a state superannuation scheme. Australia has tax-funded pensions, but makes them subject to a means test, never part of the British system.

Australia offered to recognise years of contributions in Britain to the state pension fund as qualifying years for its age pension, subject to the means test. Whatever pension amount was received from Britain would be made up to the significantly higher Australian level.

The agreement imposed no uprating requirement on Britain. This was no loss for those meeting the means test conditions since the uplift to the Australian pension would cover the missing uprating. No provision was made for uprating those who would not qualify for an Australian pension.

Encouraged by UK governments, mass migrations continued for two decades, establishing Australia and other Commonwealth countries as the prime destinations for young people to settle and raise families. In time, this inevitably drew many grandparents to join them.

Concurrently, many who would later emigrate as grandparents responded to government exhortations to counter the constant Sterling crises by spending restraint, creating savings which were later to disqualify them from Australian pensions including uprating offset.

Again in that same era, Britain began making exemptions to the regulations precluding payment of uprating overseas, see enclosure No 13. It made no exemption in the case of Australia, since, the previous Pensions Minister claimed, the bilateral agreement had secured for British expatriates an uplift to the higher, indexed Australian age pension. It was implicit in his assertion that their total pension income would thus exceed an indexed British pension.

In evidence to the Social Security Committee enquiry (see endnote iii) the previous Pensions Minister Oliver Heald MP said (239, page 64): "We protected the interests of people who were, say, going to Australia by a reciprocal agreement we made in 1953, which entitled them to an Australian age pension, which is uprated." This statement sought to perpetuate a common mis-conception which appears to have influenced an earlier decision of the European Court of Human Rights, Application 9776/82: "The (annual uprating) review based on British cost of living . . . . was reasonably replaced by benefits accrued in the country of residence"

While 333,000 expatriates are paid uprating directly from UK, and a further 163,000 in Australia and New Zealand benefit by uplift to the higher local pensions, including uprating by proxy, 270,000 expatriates or 2.25% of all UK pensioners (60,000 in Australia) suffer frozen pensions, denied uprating by Britain and receiving no compensatory local benefits.

The Department of Social Security did not publicise the existence of discrimination in pensions. It would provide information on request, and the policy is referenced in a note in one of its handbooks. But prospective emigrants do not investigate inconceivable outcomes, especially after Secretary of State for Social Services (Sir) Norman Fowler gave unequivocal assurances in a 1985 Green Paper, reconfirming what was in any case the general belief:

• in return for contributions, benefits would be given as of right
• all insured people, rich or poor, would pay the same contribution for the same benefit
• the basic national insurance pension must remain as an entitlement earned by people from paying national insurance contributions. That has been at the heart of our national insurance system since its inception and the Government are committed to it.

The Government’s prime arguments against those demanding pensions parity have always been that its estimated increased cost of some 250 million pounds, under one percent of the social security budget, could not be afforded, and that Britain operated a ‘pay-as-you-go’ pensions scheme, current pensions being paid out of current contributions.

In 1989/90 the Government refuted its own arguments by intervening in the operation of the National Insurance Fund into which pensions contributions are paid. An accumulated surplus of almost 12 billion pounds was diverted for use as incentives in personal pension schemes from which those whose contributions had created the surplus could not benefit, see Encl 1 and 14, Column 10. Then it reduced the weekly levy by three pounds, thereby tacitly admitting that today’s pensioners had been required to pay excessive contributions.

The 1995 Pensions Act made mandatory in all company pension schemes the annual uprating which is denied in the state scheme, and legislated against intervention by administrators in superannuation schemes despite the Government intervention in the NIF. The Act also raised to 65 the pensions qualification age for women; the annual savings will increase to 4 billions.

In December 1996 the Parliamentary Select Committee for Social Security, succumbing to expatriate pensioner pressure to enquire into pensions discrimination, concluded:

(Para 38) "Surely no one would have deliberately designed a policy of paying pensions to people living abroad intending to end up in the position we are at today" and

"It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for uprating"

(Para 39) "It would clearly be impractical to negotiate individual bilateral agreements with each of the other countries in the world where people draw British state retirement pensions, and in any case unnecessary; a simple change in British law could enable upratings to be paid in any or all overseas countries . . . " and

"Ultimately, it must be for the House to decide, and that is our concluding recommendation: that there should be a free vote at prime time to allow Members to express their opinion on the principle of whether the Government should pay upratings to some or all of those pensioners living in countries where upratings are not paid at present".

Governments are not obliged to accept recommendations of Select Committees; this one has been ignored by both the previous and the present administration.

The UK is the only one of 12 OECD countries in a Brunel University study failing to uprate pensions paid abroad. The study documented how in 1979 the German Federal Constitutional Court described pensions discrimination as "not subscribing to the basic constitutional principle that like cases should be treated alike". The court ruled that " contributory pensions rights should be seen as the ‘property’ of the contributors and therefore the state must justify occasions when pensions rights are withdrawn if a person leaves the country".

Britain has no independent and impartial tribunal to give such a ruling.

III STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND OF RELEVANT ARGUMENTS

15. Since the basis for the determination to restrict my pension is the country in which I have chosen to live to be near my children and grandchildren, it constitutes an interference with my private and family life, and my home, contrary to the provisions of Article 8 (Violation No.1) ,

and is a breach of a pecuniary right, contrary to the provisions of Article 1 of Protocol No. 1 (Violation No. 2).

and is discriminatory, contrary to the provisions of Article 14 (Violation No. 3).

Furthermore, the United Kingdom has failed to establish by law an independent and impartial tribunal to which I might appeal, contrary to the provisions of Article 6 & Article13 (Violation No. 4).

                                        Violation 3 Britain alone among countries operating contribution-based pension schemes arrogates
                                        the right to breach the fundamental rule that payments shall be proportionate to contributions. If
                                        Britain had maintained the original concept that no uprating would be paid overseas, it would have
                                        been discriminatory against all expatriate pensioners but at least consistent.

IV STATEMENT RELATIVE TO ARTICLE 26 OF THE CONVENTION

16. In a country lacking any independent and impartial tribunal to hear allegations of a breach of human rights, the only recourse is to the Parliament which was itself the instigator of the infringement. Since there is no provision for a formal hearing, ‘decisions’ are the refusals from time to time of Government Ministers to countenance any change in policy, and the ‘final decision’ must be the most recent such refusal.

17. I have appealed to:

          The Secretary of State for Social Security (repeatedly)

          Successive Ministers for Pensions (repeatedly)

18. All channels of appeal or remedy have now been exhausted.

V STATEMENT OF THE OBJECT OF THE APPLICATION

19. My objectives are:

VI STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS

VII LIST OF DOCUMENTS

21. List of Enclosures (all copies):

1. Letter to Prime Minister RtHon John Major MP 19 Jan 1992

2. Response from Dept of Social Security 13 Feb 1992

Responses from Pensions Ministers (all Members of Parliament):

3. Ann Widdecombe 1 Sep 1992

4. William Hague 24 Jun 1993

5. James Arbuthnot 28 Sep 1994

6. James Arbuthnot 29 Mar 1995

7. James Arbuthnot 23 May 1995

8. James Arbuthnot 22 June 1995

9. Oliver Heald 14 Nov 1995

10. Roger Evans 21 Nov 1995

11. John Denham 11 June 1997

12. Extract from Page 18 of Leaflet NP46 from August 1994 "A Guide to Retirement Pensions" issued by the Department of Social Security (calculation method)

13. Annex A to the Department of Social Security Memorandum to the Social Security Committee, November 1996 (date of uprating concessions to overseas countries)

14. British State Pension Rates, (history of uprating year on year)

15. Summary Accounts of the National Insurance Fund 1975/76 to 1994/5

VIII STATEMENT OF PREFERRED LANGUAGE

22. I prefer to receive the Commission’s decision in English

IX DECLARATION AND SIGNATURE

24. It will be assumed that there is no objection to the identity of the applicant being disclosed unless it is stated here in unambiguous terms that the applicant does object:

(Signed by hand:  B E Havard)

The following attachments were included with the Annex.  They are not on this web site but could be obtained from Brian..

BH letter of application 971121

Secretariat to the 21 November 1997
European Commission of Human Rights
Council of Europe
Strasbourg Cedex

France F -676075

Your reference: PK 8634

Dear Sirs,

Thank you for your letter of 14 October 1997.

I send you herewith the duly completed application. I request that it be read in conjunction with my previous correspondence of 28 July 1997 and 9 September 1997 which it enhances and updates.

I again commend my application to your sympathetic consideration, and continue to remain at your disposal for further information.

Yours faithfully,

B. E. Havard

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BH letter to ECHR 980803

Secretary to the 3 August 1998

European Commission of Human Rights
Conseil de l’Europe
F-67075 Strasbourg Cedex
France

Your Ref. HR-R1.E

JSP/dp

Dear Sir,

I understand that, at an early stage in the consideration of an application, the documents are sent for comment to the country concerned, in my case, the United Kingdom.

Could you kindly advise me if that has already occurred, if so on what date, and what the next step is likely to be.

I would be most grateful for your advice.

Yours faithfully.
Brian Havard

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ECHR letter - Phillips 980827

COMMISSION EUROPEENNE EUROPEAN COMMISSION
DES OF DR 0 I T S  D E  L'H 0 M M E  HUMAN  RIGHTS
CONSEIL DE L'EUROPE COUNCIL OF EUROPE

STRASBOURG STRASBOURG

Mr Brian Edward HAVARD
4, Braemar Terrace
AUS - STIRLING SA 5152

HR

JSP/dp 27 August 1998

Dear Sir,

Yours faithfully

For the Secretary to the European Commission of Human Rights

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Extract from 9776/82

DECISION of 3 October 1983 on the admissibility or the application

DECISION du 3 octobre 1983 sur la recevabilité de la requête

Article 1 of the First Protocol: In certain circumstances, this provision guarantees the right to benefit from a pension scheme to which one has contributed. Even if this right extends, in principle, to the periodic increases, it may be subjected to restrictions, if the pension is to be paid abroad.

Article 14 of the Convention, in conjunction with Article 1 of the First Protocol: The fact that a person may benefit from an international, social security agreement, which is less favourable than others, does not constitute discrimination.

THE LAW (Extract)
consists

The Commission has considered the applicants’ complaint under Article 1 of the Protocol. It first recalls that it has previously held that although this provision does not as such guarantee a right to a pension, the right to benefit from a social security system to which a person has contributed may in some circumstances be a property right protected by it. However the Commission also held that Article 1 does not guarantee a right to a pension of any particular amount, but that the right safeguarded by Article 1 consists, at most, "in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund" (Application No 5849/72, Muller v. Austria D. R. 3. P. 25 at p. 31). It has further held that before the right to benefit protected by Article 1 can be established, it is necessary that the interested party should have satisfied domestic legal requirements governing the right (Application No. 7459/76. X. v. Italy. D. R. 11. P. 114).

In the present case when the applicants emigrate to Australia their entitlement to benefit from the United Kingdom pension scheme will come to be regulated by different rules of domestic law, under which they will cease to qualify for payment of future pension increases contemplated by the relevant legislation. To that extent they will not satisfy domestic legal requirements to benefit from the United Kingdom pension scheme. Even if the right to benefit from a scheme will normally also apply to the regular increases this is not necessarily the case where a person leaves the country where the specific scheme operates. The Commission notes that in many countries specific restrictions as to the payment of social security benefits to foreign countries exist or have existed (cl. Application No. 6572/74 X. v. Federal Republic of Germany. D. R. 8. P. 70). In the Commissions view such operation of domestic law does not amount to a deprivation of possessions infringing Article 1 of the Protocol and there is thus no appearance of any breach of this provision.

The Commission has nevertheless further considered the applicants’ complaints in the light of Article 14 of the Convention which provides that enjoyment of Convention rights shall be secured without discrimination. In this respect it notes that one element of the applicants’ complaint appears to be that they will receive less favourable treatment under the United Kingdom pension scheme than would other persons who have paid the same contributions but who have remained in the United Kingdom or emigrated to other countries. The Commission has therefore considered whether such differential treatment could amount to discrimination in the enjoyment of their rights under Article 1 of the Protocol contrary to Article 14.

The commission notes that it is a common feature of international life that social security agreements are entered into between different countries for the purpose of regulating the rights of persons moving from one country to another under the social security systems of each country. Such agreements commonly provide for the substitution, to a greater or lesser degree, of benefits under one system for those due under another. Under the Agreement between the United Kingdom and Australia the applicants' rights under the United Kingdom social security scheme are to some extent restricted and replaced by certain rights under the Australian scheme. The applicants, in their particular circumstances, will apparently be less well off than they would have been if they had remained in the United Kingdom or if they had gone to certain other countries. However it is almost inevitable that where a person in effect changes over from one social security system to another, he may find that his entitlements differ from those of persons in other countries. Depending on the circumstances such differences may or may not favour the individual. Furthermore the Commission notes that the applicants will only lose the benefit of future increases in their pensions, whose purpose broadly speaking is to compensate for rises in the cost of living in the United Kingdom. Given that they will not be living in the United Kingdom it appears reasonable that this element in their pension rights in particular should be replaced by the possibility of benefiting under the system of the country they are moving to.

In these circumstances in view of the applicants' move to Australia and the existence of the relevant social security agreement, the Commission considers that there is objective and reasonable justification for restricting the scope of their entitlements under the United Kingdom system. It finds that the differences of treatment they will face are not therefore such as to infringe Article 14.

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BH letter to ECHR  980918

Secretary to the 18 September 1998

European Commission of Human Rights
Conseil de l’Europe
F-67075 Strasbourg Cedex
France

For the attention of Mr J. S. Phillips Application No. 38882/97 Your Ref. HR-R1.E JSP/dp

Dear Sir,

Thank you for your letter of 27 August 1998. I take note that my application has not yet been communicated to the United Kingdom Government but that it may be possible to put the application before the Commission in the session commencing 19 October.

Although you suggest there may be shortcomings in my application, it cannot be argued that withholding 35% of the current United Kingdom state pension is not an interference with my right to respect for family life. My right to spend my declining years near my children and grandchildren who have made their home in Australia is uncontested. It is a constant source of worry to them and to us that we have to make good the income shortfall from our own resources; if either I or my wife should become chronically ill, those resources could become rapidly exhausted, and the burden of our support would fall on the family.

As to your reference to the Commission’s decision in Application No. 9776/82, I drew attention specifically to this case in my own application (paragraph 6 of page 2), suggesting that the adverse judgement might have resulted from the common misconception that all British pensioners in Australia benefit from local social security provisions under a reciprocal agreement. In fact, one third, among whom I am included, do not, and their inevitable exclusion by a means test not forming part of the British system, was known to those who signed the agreement for Britain.

My application noted a number of developments which have occurred since 1982 when the 9776 judgement was delivered, among them:

• Department of Social Security Research Report No. 23, published 1993, "Crossing National Frontiers" by Helen Bolderson and Francesa Gains, Brunel University

• House of Commons Social Security Committee Third Report session 1996-97 "Uprating of State Retirement Pensions Payable to People Resident Abroad", and

• ECHR Case of Gaygusuz v. Austria (39/1995/545/631) which appears to be very relevant.

I request that my case be declared admissible in order that the new evidence be considered.

Yours faithfully,

Brian Havard

HRJSP/dp

30 September 1998

Yours faithfully,

J.S. Phillips
For the Secretary to the European
Commission of Human Rights

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The Decision 981022

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