Judgments - Regina v. Secretary of State for Work and Pensions (Appellant) ex parte Hooper and others (FC) (Respondents) Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Hooper (Appellant) and others Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Hooper and others (FC) (Appellants)(Conjoined Appeals)

Sex-specific survivor benefits may remain objectively justified while Parliament phases out protection for a class which has suffered historical economic disadvantage. Courts should accord substantial latitude to legislative judgments about social policy, public expenditure and the appropriate moment for ending transitional protection.

Where primary legislation cannot be read compatibly with Convention rights, section 6(2) of the Human Rights Act 1998 preserves parliamentary sovereignty. A public authority need not neutralise Parliament's scheme through matching extra-statutory payments. If it lawfully retains discretion, declining to exercise that discretion may fall within section 6(2)(b) where the decision gives effect to the incompatible legislation.

Four widowers claimed payments equivalent to widow's payment, widowed mother's allowance or widow's pension under sections 36–38 of the Social Security Contributions and Benefits Act 1992. The statutory benefits were confined to widows. The claims concerned only conduct after the Human Rights Act 1998 came into force.

Moses J, in [2002] EWHC 191 (Admin), held that widow's pension remained objectively justified and that section 6(2)(b) protected the Secretary of State concerning the other benefits. The Court of Appeal, in [2003] EWCA Civ 813; [2003] 1 WLR 2623, disagreed on both principal issues.

The conjoined appeals asked whether continued payment of widow's pension was objectively justified and whether section 6(2) prevented the non-payment of equivalent widow's payment and widowed mother's allowance to widowers from being unlawful. Subsidiary issues concerned victim status, retrospectivity and the Government's settlements with earlier Strasbourg applicants.

1. Disposition. Lord Hoffmann delivered the leading speech. All five Law Lords agreed that the Secretary of State's appeals should be allowed and the widowers' appeals dismissed.

2. Widow's pension. Per Lord Hoffmann, the difference in treatment was objectively justified. Older widows had historically suffered economic disadvantage, and that disadvantage had not disappeared. Deciding when to withdraw transitional protection involved social policy, public expenditure and settled expectations. Parliament was entitled to phase out the pension while preserving the rights of women bereaved before 9 April 2001. The Court of Appeal had given insufficient effect to the broad area of legislative judgment and had treated gradual social change as if it compelled earlier abolition.

3. Section 6(2). The House unanimously held that section 6(2) of the Human Rights Act 1998 provided a defence concerning widow's payment and widowed mother's allowance. Sections 36 and 37 of the Social Security Contributions and Benefits Act 1992 could not be read as extending those benefits to widowers. Section 6(2) preserved parliamentary sovereignty and did not require the Secretary of State to neutralise Parliament's scheme through matching extra-statutory payments.

   Lord Hoffmann and Lord Hope considered section 6(2)(b) applicable if a common-law power to pay widowers existed. Lord Nicholls agreed that paragraph (b) applied on that hypothesis but regarded it as unnecessary to decide whether such a power existed. Lord Brown preferred section 6(2)(a), reasoning that payments contrary to Parliament's clearly expressed intention would be an abuse of power. Lord Scott also preferred paragraph (a) if a choice were required, but regarded the distinction as immaterial. The House's common basis was therefore that one limb or the other protected the Secretary of State.

4. Victim status and retrospectivity. Lord Hoffmann treated these matters as unnecessary to the result. He nevertheless considered that a widower would have needed, after 2 October 2000, to communicate to an appropriate official that he wished to claim. An oral inquiry could suffice, as could an express or implied reaffirmation of an earlier claim. A pre-commencement claim alone could not establish victim status for a later allegedly unlawful omission.

5. Remaining claims. Lord Hoffmann rejected any general allowance of time for correcting discrimination where no continuing justification had been advanced. He also rejected the challenge to settlements with pre-2000 Strasbourg applicants: litigation status was not readily analogous to the statuses protected by article 14, compensation was not itself enjoyment of the infringed right, and the distinction was objectively justified. Lord Scott separately questioned, without deciding, whether the survivor-benefit discrimination fell within the ambit of article 8 or article 1 of Protocol No 1.

6. The repealed provisions were not made the subject of a declaration of incompatibility.

1. House of Lords: In [2005] UKHL 29, unanimously allowed the Secretary of State's appeals and dismissed the widowers' appeals. It restored the principal conclusions reached at first instance but declined to make a declaration concerning the repealed provisions.
2. Court of Appeal: In [2003] EWCA Civ 813; [2003] 1 WLR 2623, held that widow's pension was no longer objectively justified and that section 6(2)(b) did not protect the refusal to make matching payments.
3. High Court, Administrative Court: Moses J, in [2002] EWHC 191 (Admin), held that widow's pension remained objectively justified and that section 6(2)(b) provided a defence concerning widow's payment and widowed mother's allowance. He declared sections 36 and 37 of the Social Security Contributions and Benefits Act 1992 incompatible with Convention rights.