Peter Edwards represents Claimants in £198 million Police Widows Pension Judicial Review Application

The Judgment of Mr. Justice Fordham in Green & Others v. Commissioner of Police of the Metropolis; Secretary of State for the Home Department [2022] EWHC 1286 (Admin) was handed down on 27th May 2022.

Peter Edwards, leading Professor Conor Gearty Q.C. (Hon.), Matrix Chambers, instructed by Mark McGhee, Rebecca Burgess and the expert Human Rights team at Lexent Partners, represented the Claimants, who are all widows/widowers of former Police Officers entitled to ongoing pensions as a result of their deceased husband/wife’s Police service. The Claimants were supported by the Police Federation of England and Wales and the National Association of Retired Police Officers (NARPO).

The Judicial Review challenge was to the legality of Regulation C9 of the Police Pensions Regulations, 1987 (the “PPR, 1987”), (the “Cessation provision”), which provides that entitlement to a widows’/widowers’ pension will cease in the event of re-marriage, entering into a civil partnership or cohabitation with a new partner. 

It was alleged on behalf of the Claimants that Regulation C9 – and its retention in the PPR, 1987 – was unlawful and incompatible with their Convention rights under Article 12 (Right to marry), Article 8 (Right to respect for private and family life) and Article 14 (Prohibition of discrimination) (read with Article 1/Protocol 1 (Protection of property)).

Despite resistance on behalf of the Secretary of State, the Court accepted the submissions made on behalf of the Claimants that Regulation C9 engaged their Article 8 and Article 14 (read with Article 1/Protocol 1) rights.  That engagement was in respect both of the substantive effect of Regulation C9 - in inhibiting the Claimants from re-marrying, entering into a new civil partnership or co-habiting with their new partner or in removing their entitlement to the widows’/widowers’ pension in the event that they do so (despite the significant financial cost) – and in the mechanisms of enforcement of Regulation C9 (the Claimants having to sign an annual declaration, independently witnessed, that they have not remarried or started cohabiting with a new partner and the risk of surveillance and other intrusive measures to ensure compliance).

As to Article 12, the Court held that Regulation C9 - which operates so as to remove the right of widows/widowers to a pension in the event that they re-marry (for example, costing Mr Sneller a sum in the region of £300,000) – did not “’impair’ or ‘injure’ the ‘essence’ or ‘substance’ of the exercise of the right to marry or which ‘substantially interferes with’ or ‘unreasonably inhibits it’” (§93). 

In so concluding, the Court was necessarily drawing a distinction between the imposition of a fee, even a relatively modest fee, to get married (which was held to invoke Article 12 in Baiai) and a very substantial financial penalty (in the order of £300,000).

As to the issue of the ‘justification’ test, given that Article 12 does not have a specific ‘justification’ provision equivalent to Article 8(2), the Court held that: “it may well be sufficient for the purposes of Article 12 compatibility to ask a ‘composite question’ – as it is in the present case – in which disproportionality, arbitrariness and injustice are part and parcel of the idea of whether the exercise of the right to marry has its ‘essence’ or ‘substance’ ‘impaired’ or ‘injured’ by – or is ‘substantially interfered with’ or ‘unreasonably inhibited’ by – the impugned national law or administrative action” (§94).

The Court did no more than that to identify exactly what the ‘composite question’ to be asked and answered would be, although the acceptance that a different test of justification applies is itself significant.  It is to be hoped that the Court of Appeal will formulate the ‘composite question’ with a greater degree of clarity for practitioners in this field and for first-instance Courts applying the requisite test.

Having concluded that Articles 8 and 14 were engaged, the Court held that the Home Secretary had discharged the onus of justifying the retention of Regulation C9. The Court also held for the same reasons that Article 12 had not been breached.

The Court recognised that the original rationale, and justification, for Regulation C9 – namely, that “the payment of pensions to widows and widowers was to provide some measure of financial compensation for the loss of financial support that the beneficiary had received from their late husband or wife.  So, if the beneficiary remarried or cohabited, the expectation was that they would look to their new spouse or partner for financial support” – was now socially outdated and no longer appropriate (Judgment, §8).

In finding that, despite the original rationale no longer applying, the Home Secretary had justified the retention of Regulation C9, the Court relied on the following key factors (Judgment, §§70 to 82):

First, that there can, in principle, be an objective justification for retaining, within a public service pension scheme, a restriction whose historic social rationale is demonstrably outdated. This is particularly so where the benefits under the same are referrable to service and the members’ contributions. 

Second, that there was “good evidence of relevant conscious and contemporaneous policy decision-making” which rejected the option of retrospectively repealing Regulation C9.

Third, that a new Pension Scheme had been implemented, into which the Claimants’ partners could have transferred, that no longer included Regulation C9 (although the new Scheme was far less advantageous in most other respects). 

Fourth, the significant economic implications of disapplying Regulation C9, estimated to be in the region of £198 million. 

Fifth, that Regulation C9 was not “in the nature of a penalty… or a direct levy … on marriage or co-habitation” and the Claimants would not be put into poverty by losing the benefit of the widows’/widowers’ pension.

Sixth, that there are justifiable reasons to distinguish the position of the widows/widowers of Officers killed on duty from those not killed on duty.  It is a “particular kind of loss … where the death has been directly caused by the discharge of that service … the ability to continue to contribute to service and pension as an Active Service Member has been lost by a death caused in that way.”

Seventh, that the intrusive aspects of the regime of enforcement of Regulation C9 are a “necessary consequence of the design of the scheme rules … and does not undermine the justification …”

Eighth, that the retention of Regulation C9 was a policy choice of the legislature of an economic and social nature.  The Home Secretary has a “latitude as to the making of the policy choices.” 

Permission to appeal to the Court of Appeal was, unusually, granted by Fordham J., both in respect of the finding that Regulation C9 was not a measure that impinged the Claimants’ Article 12 right to marry and the finding that the Secretary of State had discharged the onus of justifying Regulation C9 and its retention in the context of Articles 8 and 14.

The Appeal to the Court of Appeal will now be lodged on behalf of the Claimants.

To read the full judgment, please click here.

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