R (Hooper) v Secretary of State for Work and Pensions

The House of Lords considered claims by four widowers that the Secretary of State's refusal to make payments equivalent to widow's benefits constituted unlawful sex discrimination in breach of article 14 read with article 1 of Protocol 1 and article 8. Central issues were whether the widow-only provisions in the Social Security Contributions and Benefits Act 1992 (sections 36–38) were objectively justified and whether the Human Rights Act 1998, in particular section 6(2), disapplied the general domestic obligation in section 6(1) to avoid incompatibility with Convention rights.

The House held that (a) the continuation of the widow's pension (WP) for women bereaved before 9 April 2001 was objectively justified and did not breach the Convention; and (b) non-payment of widow's payment (WPt) and widowed mother's allowance (WMA) to widowers, although incompatible with Convention rights, was immunised from domestic illegality by section 6(2) of the Human Rights Act 1998 because the Secretary of State was giving effect to primary legislation which could not be read compatibly with those rights.

The claimants were four widowers who would have been eligible for statutory widow's benefits had they been women. They sought relief under the Human Rights Act 1998 (section 6(1) and section 7) alleging sex discrimination contrary to article 14 read with article 1 of Protocol 1 and article 8. The Secretary of State defended the claims on two main grounds: objective justification for the survivor pension (WP) and the disapplication of the domestic unlawfulness rule in section 6(1) by section 6(2) when a public authority acts so as to give effect to primary legislation that cannot be read compatibly with Convention rights.

Procedural history: the case was heard at first instance by Moses J ([2002] EWHC 191 (Admin)), proceeded to the Court of Appeal ([2003] EWCA Civ 813), and then to the House of Lords ([2005] UKHL 29).

Relief sought: declarations and remedies under the Human Rights Act 1998 that the Secretary of State had acted unlawfully by refusing equivalent payments to widowers.

Issues framed:

• whether payment of WP to women but not men was objectively justified;
• whether non-payment of WPt and WMA to widowers could be challenged domestically given section 6(2) of the Human Rights Act 1998;
• whether the Secretary of State had or could lawfully exercise a common law power to make extra-statutory payments to widowers;
• victim status and the temporal scope of domestic remedies after the Human Rights Act came into force; and
• whether refusal to make ex gratia payments to applicants who had not already petitioned Strasbourg was itself discriminatory.

Reasoning and outcome: the House accepted that WPt and WMA fell within the ambit of relevant Convention rights but held that section 6(2) disapplied section 6(1) as regards the Secretary of State's refusal to make matching payments because he was giving effect to provisions of primary legislation (sections 36 and 37 of the 1992 Act) which could not be read compatibly with the Convention. On WP the House concluded that its preservation for those bereaved before 9 April 2001 was objectively justified and did not breach Convention rights. The House also rejected the argument that differential treatment in making ex gratia payments to earlier Strasbourg applicants was an unlawful Convention breach.

Appeals of the Secretary of State allowed and appeals of the widowers dismissed. The House held that (1) the continuation of the widow's pension for those bereaved before 9 April 2001 was objectively justified and did not breach Convention rights; and (2) non-payment of WPt and WMA to widowers, although incompatible with Convention rights, did not give rise to domestic unlawfulness because section 6(2) of the Human Rights Act 1998 disapplied section 6(1) where the Secretary of State was giving effect to primary legislation that could not be read compatibly with Convention rights.

First instance: Moses J, Administrative Court, R (Hooper & Ors) v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin). Court of Appeal: [2003] EWCA Civ 813 (reported [2003] 1 WLR 2623). Final appeal to the House of Lords: [2005] UKHL 29.