Discrimination, the HRA and the Pensions Act, Part I

I have made it clear that I will be happy to answer questions through this blog, if anyone thinks that I might be able to explain something to them.

Joanne Welch has just asked me:

“May I please enquire about the Human Rights Act and whether the Pensions Act discriminates against women.”

I feel very hesitant about answering this, because I retired nine years ago and I am not fully up to date with developments since then. However, I can explain the basic ground rules for such a claim.

Any claim that a woman suffered from discriminatory treatment would have to be brought under Article 14 of the European Convention on Human Rights (“ECHR”), read with ECHR Article 1 of Protocol 1:

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A claimant would have to identify the section (or sections) of the Pensions Act 2014 which is said to result in one of her Convention rights being affected in a discriminatory way when her position is compared with that of a comparable man.

Under the HRA, the most that an English court could do if it found that one of her Convention rights had been violated would be to make what is called a “declaration of incompatibility”. This is equivalent to a message from the judiciary to Parliament that a provision in one of its Acts does not comply with the Convention. It is then for Parliament to decide what, if anything, to do when it receives this message. If it decides to correct the position there is a special “fast track” procedure which makes it easier for the corrective measure to pass swiftly through Parliament.

The treatment of pension entitlements under the ECHR was discussed in three English courts between 2002 and 2007 – by the High Court, by the Court of Appeal and by the House of Lords – and in the Grand Chamber of the European Court of Human Rights in Strasbourg in 2010, in the case of Carson. That case was concerned with a complaint by pensioners overseas that their pensions did not receive an annual uplift due to price inflation, unlike UK-based pensioners. Their claim failed, and the facts were very different, but the case established that a statutory pension entitlement, whether derived from contributions or not, is a “possession” for the purposes of Article 1 of ECHR First Protocol, so that if they could have established that there was no objective and reasonable justification for the difference of treatment, their claim could have succeeded.

I am not sure how it can be suggested that any part of the Pensions Act 2014 treats women in a discriminatory way when their situation is compared with that of comparable men. If there had been a way of arguing the case, I am sure that a trade union would have brought a claim. They understand this branch of the law well, and are always alert to promote claims on behalf of their members in arguable cases.

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