Half a million frozen pensioners have greeted the Carson judgement with dismay and disbelief, yet this incredible decision threatens still greater numbers who had looked to the Human Rights Act for the protection of their civil liberties.

In his introduction to the Guide to the Human Rights Act 1998 (HRA), the then Home Secretary, the Rt. Hon. Jack Straw wrote:

"The Human Rights Act makes rights from the European Convention on Human Rights (ECHR) into a form of higher law in the United Kingdom. Our Governments have sought to comply with these rights since the Convention was first agreed some fifty years ago. But 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 law."

In 1998 when HRA was being debated, Charter88, the most active campaigner for parliamentary reform, expected it " . . to strike a balance between the powers of Parliament, Government and the Courts" , but the Government had formulated the Bill such that courts would be denied the right to overturn existing legislation, the final arbiter was to be the Minister. This imbalance brought an immediate response:

"But Parliament is emasculated, backbenchers having traded their powers against the prospect of long-term political careers for the obedient. William Hague (then Tory leader) said "The House of Commons needs reform – it no longer effectively scrutinises legislation nor holds ministers to account".

The principal recommendation of the Social Security Committee 1996 enquiry into the selective non-payment of expatriate pensions uprating had been that the issue should be resolved by Parliament after a debate in prime time with the whips off. But neither the expiring Tory administration (the last to preside over a balanced House in which a majority had indicated support for the frozen pensioners) nor its New Labour successors would risk allowing 650 Members under no duress to make a moral judgement.

Harry Cohen MP said ‘There is too much sycophancy among the backbenchers; it has gone too far. It’s about time the traditional role of the backbencher to scrutinise the executive was re-asserted’. Chair of the Commons liaison committee Robert Sheldon MP, speaking for the chairmen of 27 select committees, warned Ministers not to try intimidating backbench MPs on Select Committees, adding ‘We want to make sure that select committees continue to occupy this position of questioning the executive and bring their reports out without any fear of the consequences’. Jeremy Corbyn MP considered it already too late; ‘Select committees are pressed not to question ministers, and sub-committees are staffed on the basis of loyalty to the party line . . . ’

It is to this enfeebled parliament that the Carson judgement, para 68, consigned the fate of frozen pensioners " . . . it is clear that the judicial arm must give the greatest deference to the legislature and to the elected executive", citing with evident approval the fantasy concept of deferring ". . on democratic grounds to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention". Yet the judgement in para 32 had carried the admission by Pensions Minister Jeff Rooker that no logic had informed Government decisions!

Deference to a supposed parliamentary prerogative - a pre-HRA concept - was supported by selective, sophistical and increasingly convoluted reasoning, for example:

Para 39 ‘. . the Commission has frequently held that the payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1. The Commission has added, however, that "even if it is assumed that Article 1 of Protocol No. 1 guarantees persons who have paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount" (see Müller v Austria, Comm. Report 1.10.75, para. 30, D.R 3 p.25)." The judgement fails to record from the Muller case:

Para 46 ‘. . Where, however, the payment of contributions is no more than a condition for entitlement to a benefit (as I assume was the position in Gaygusuz), it is difficult to see why entitlement to a benefit resulting from satisfaction of that condition should create a pecuniary right protected by Article 1, when entitlement to benefit resulting from satisfaction of some other condition should not.’ The argument is academic, suspect and irrelevant when the entitlement of 96% of UK pensioners including half the expatriates is accepted by the Government without demur.

‘ In a case such as the present, the payment of benefit does not create a right of property in any real sense.’ Perhaps in the judiciary, but in the real world, it does just that.

Para 47 ‘However, I entirely agree with Moses J, in paragraph 50 of his judgment in Hooper, that a pecuniary right protected by Article 1 is defined by the domestic legislation that created it. I refer in particular to the decision of the Court in Bellet, in which the Court stated:

"... while no right to the grant of a pension is, as such, guaranteed by the Convention, compulsory contributions to a retirement fund may give rise, in certain cases, to a right of ownership over part of the funds .... However, it is still necessary, in order for such a right to accrue, that the persons concerned should fulfil the conditions laid down by national law." This is again asserted as a firm Carson judgement in para 49, only to have that reasoning invalidated by:

Para 49 ‘In my judgment, therefore, there has been no infringement of Article 1 of the First Protocol. 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.’ Frozen pensioners contend that the legislation removing the right is indeed in breach of the Convention and since national law was the ground for rejecting the pensioner case, not addressing the issue at this hearing was unrealistic.

Para 63 ‘Similar comments (to those in para 62 regarding South Africa) apply to the comparison between the Claimant and those living in other countries.’ This is demonstrably incorrect. Eighty percent of the affected pensioners live in Australia and Canada where inflation rates and the cost of living are directly comparable to the United Kingdom.

Para 65 ‘It seems to me that the comparison between the positions of persons living in different countries, in different social and economic circumstances, and under different tax and social security regimes, is complex, and cannot simply be restricted to a comparison of the sterling amounts of their UK pensions’. The argument is again irrelevant since this has never been a consideration of Government in its choice of countries in which to uprate, see para 28 19(f) ‘no regard is had to inflation’.

Para 66 The judgment dismisses Gaygusuz from transforming the legal position after the dismissal of Havard (App. No. 38882/97), yet admits that no grounds for rejection had been disclosed, adding ‘The lack of any specific reasons is tantalising, and has left me to consider the question of breach of Article 14 without the benefit of the recent thinking of the Commission. I should very much liked to see the report and information referred to in the decision’. As also would the applicant. There was no reference to report and information in the decision document which merely stated:

The ‘possible obstacles’ were set out in a letter 27 August 1998 from a clerk in the Secretariat, alleging that ‘ the complaints . . are substantially the same as complaints which have already been dealt with the Commision (sic). I enclose a copy of the Commission’s decision in application No. 9776/82.’ (JW & EW). It should be noted that the Commission was to be abolished some days later, it was reportedly struggling to clear a substantial backlog, and the dismiaal was endorsed by a ‘kangaroo’ court of only three judges instead of the usual 12 to 14.

Thus the Carson judgement dismisses the crucial Gaygusuz precedent from having reversed JW & EW on the basis of Havard yet there is no evidence that Gaygusuz was ever considered, the application having been dismissed on the basis of that same JW & EW precedent. A circular argument indeed.

Para 71 ‘European jurisprudence does not differ from English authority on the deference to be given to the democratically-elected organs of government in the field of social policy and public expenditure . .’ citing Mellacher [1989]. But this totally ignores the evolving ECHR jurisprudence in Sutherland [1994]

‘61. In contending that there remains a reasonable and objective justification ... the Government place considerable reliance on the fact that the issue was recently and fully debated by a democratically elected Parliament. Nevertheless, this factor cannot of itself be decisive. Of more importance is the sufficiency of the reasons advanced .’

Moreover the judgement in para 35 complained of a lack of evidence of the practice in other states, yet acknowledged in the following paragraph that the UK is alone among OECD countries in practising pensions discrimination. Annex 2 listing examples of restrictions by other countries rightly included three major European countries with similar contributory pension schemes, but their restrictions apply only to NON-nationals, while Australia and New Zealand have tax-funded schemes which are in no way comparable.

Importantly, the judgement takes no cognisance of a directly comparable case involving discrimination against expatriate pensioners heard in the German Constitutional Court {1979] which 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.