The following is an edited version of an email sent by BAPA member Brian Havard to an MP who had evinced some support for our cause.

Thank you for your letter of 29 November enclosing a further response from Secretary of State Peter Hain. I very much appreciate the tenacity with which you are pursuing the issue.

Peter Hain gives the impression of a reasonable man but he makes unreasonable arguments, devised no doubt by his department’s senior officials. Please allow me to expose them.

“..like Mr Havard … who want their UK State Pensions to be increased in line with those pensioners living in the UK…”  We do not make UK-resident pensioners our comparators because they have so many benefits to which we make no claim – like Pensions Credit, Winter Fuel Allowance, Travel concessions and (enormously expensive) access to the Health scheme. We use the more realistic comparator of pensioners in the USA.

“We then uprate the State Pension for those living abroad where there is a legal obligation to do so”. The Secretary of State dutifully repeats this mantra as if the UK were the helpless victim of external forces. True the EU has issued a directive on the issue, but its major member states (like Germany, France) – with Britain the embarrassing exception – apply pensions parity not just within the EEA but on a worldwide scale. As to non-EU countries, it was Britain which unilaterally, arbitrarily, and (according to former Pensions Minister Jeff Rooker) quite illogically, chose the countries where uprating would be paid.

“We have decided that our priority is to help the least well-off pensioners in this country have a better standard of living ….”, a noble aspiration to which there could be no objection if they were not funding it in part with our confiscated entitlement.

“…the policy on the uprating of State Pensions abroad has been the subject of litigation and the domestic courts all found in favour of the Government ….”

This argument is quite untenable. As I explained in some detail in my email to you of 30 October, the domestic courts decided it was not their responsibility to bring down judgments which involved what they held to be major disbursements from the public purse. Later the then Lord Chancellor Lord Falconer made a public admission that there was such an understanding between the judiciary and the executive & parliament. Former Master of the Rolls the late Lord Donaldson said it was the prime duty of the courts to determine whether domestic legislation was in conflict with HRA. This duty was ignored in the Carson case. Lord Carswell alone made a judgment on the merits, that the policy of discrimination breached the European Convention on Human Rights. I personally believe this ‘understanding’ between judiciary and defendant (the Government) breached Article 6 which mandates strict independence and impartiality in tribunals hearing applications under the Convention. Peter Hain wants to defer the whole issue until Strasbourg hears the case, but the court is so overwhelmed, the hearing is already one year overdue and there may be further long delays. Time is of the essence for pensioners.

But the clinching argument is that the courts did not formally look at the issue of age discrimination. They stuck strictly to considering the circumstances of the Applicant (who was admittedly a very bad choice, much too young, and had suffered from the discrimination in only a minor way when she took the issue to court). To illustrate how narrowly focussed the judiciary were, Mr Justice Burnton said in the High Court at para 49 ‘…I add, however, that it does not follow that legislation that removes a right protected under Article 1 of the First Protocol cannot infringe that provision. That case is not before me.’

The judge was aware of the age aspect. In para 5 he said; ‘…The effect on those who retired long ago is more substantial and may be dramatic. Mr William Hayes, who lives in Australia, reached 65 in 1972. He receives a pension of the inconsiderable sum of £6.75 a week, less than one-tenth of the sum of £72.50 that would be paid to a pensioner with a complete contribution record who retired last year. Someone who retired as recently as 1990 receives only £46.90 a week…’ (this latter reference was to me personally; 17 years later, I still receive ₤46.90). But Justice Burnton did not take the age aspect further; the case was not before him.

Secretary of State Peter Hain has been briefed to claim that the Carson verdict absolved the Government in all its discriminatory actions. Not so! Apart from failing to observe the Donaldson dictum by pronouncing whether the discriminatory domestic legislation was in conflict with the Convention, the issue of age discrimination, which has so many bizarre outcomes for those in frozen countries, was not addressed at all.

You set this hare running with your perfectly justified demand that “Age discrimination legislation be extended to apply to goods and services, not just in the workplace. It should be treated as seriously as other forms of discrimination with immediate effect” to which PUS Barbara Follett responded: “…the Government have done a great deal for age equality, and we are strongly committed to tackling age discrimination in all walks of life”…. We have also taken a number of non-legislative steps to address age discrimination in the provision of public services … However, the Government are aware that those measures have not yet fully addressed age discrimination outside the workplace……”.

Pensions freezing is of course indirect age discrimination. While DWP may not set out deliberately to penalise us as we age, that is the effect of their policy. You will be aware that there was recently a DWP Consultation on Age Discrimination. The Consultation Document para 26 makes clear ‘….Direct or indirect discrimination will be lawful if: • it pursues a legitimate aim; and • it is an appropriate and necessary (or proportionate) means of achieving that aim (the test of "objective justification“).Though the Government was primarily concerned with age discrimination in the workplace, the same ‘objective justification’ must be applied equally to pensions freezing;  ‘necessary’ it cannot be when the cost of ₤420m is covered two-and-a-half times just by the annual interest income on the current mammoth NIF surplus of some ₤40 billions (forecast to double over the next five years!), nor can it be ‘proportionate’ when a saving of a trivial 0.8% in the pensions budget causes ninety year-old frozen pensioners to lose over 90% of their entitlement.

And to complete what is already a very strong case, we have the blanket assurance of Jack Straw (then as Home Secretary, now Justice Minister), that:

. under the Human Rights Act, everyone gets the same set of basic guarantees from our public services, whoever we are and wherever we live.’

That should be enough to batter down the Government obduracy. Where to start? – in your Public Accounts Committee, or should it go first to the Commission for Equality and Human Rights? Do please take a lead – I am confident we can assure you of all-party support.

Half a million expat pensioners will be for ever grateful.

Sincerely,

Brian Havard