Carter & Anor v Essex Police

The temporal application of a later human-rights or equality measure depends on whether it would retrospectively alter rights fixed by past events. Wilson v First County Trust Ltd provides the relevant approach under section 3 of the Human Rights Act 1998. A continuing contingency does not prevent rights from having been fixed where the pension scheme extinguished any entitlement decades earlier.

For article 14 discrimination in welfare or social-policy fields, the manifestly without reasonable foundation test applies. Original policy choices receive substantial respect, while ex post facto justifications require closer scrutiny. Cost alone will rarely justify discrimination, but cost combined with wider policy considerations may do so. Indirect age discrimination also requires proof of particular disadvantage to the relevant age group.

Eric and June Carter challenged the exclusion of a post-retirement widow’s pension under the Police Pensions Regulations 1987. Mr Carter retired in 1977, having been married throughout his police service to his first wife. He married Mrs Carter after retirement. The scheme provided benefits for a widow married during the officer’s service, and later extended benefits for post-retirement widows only in respect of service after 5 April 1978.

The claimants argued that the exclusion breached article 14 of the Convention and amounted to indirect age discrimination under section 19 of the Equality Act 2010. They also argued that section 3 of the Human Rights Act 1998, and the Framework Directive and implementing age-discrimination legislation, required the scheme to be read prospectively in a compatible manner. The central issues were whether the claims were retrospective, whether the discrimination was justified, and whether the scheme placed older officers at a particular disadvantage.

1. Retrospectivity. The claim was dismissed. Under section 3 of the Human Rights Act 1998, the court must consider Parliament’s intention and the unfairness of altering rights fixed by past events. The pension position crystallised on Mr Carter’s retirement in 1977. His first wife’s death in 1979 did not create any prospect of a pension for Mrs Carter, whose position had been adversely affected since her marriage in 1981. The claim therefore sought to alter a situation fixed long before the 1998 Act. The same conclusion followed under EU law: the Framework Directive and the 2006 regulations could not be given retrospective effect to reopen a permanently fixed pension position.
2. Convention status and analogy. Mrs Carter’s status as a post-retirement spouse, and potential status as a post-retirement widow, was an “other status” under article 14. Post-retirement and pre-retirement widows were sufficiently comparable for the court to address justification.
3. Justification. The manifestly without reasonable foundation test applied. The court must distinguish between the original policy decision and later explanations. Considerable deference is due to conscious governmental choices concerning finite resources. Ex post facto reasons require closer examination, although a bona fide expert judgment may still receive respect. Mere historical practice is insufficient, and cost alone will rarely justify discrimination. Here the exclusionary rule had a reasonable foundation: the cost of wider benefits, the contributory structure of the scheme, the priority given to other improvements, and the policy that employers should provide for dependants acquired during service. The rule was therefore justified.
4. Age discrimination. The exclusionary rule was a provision, criterion or practice. However, the claimants failed to prove that it placed men over 90 at a particular disadvantage compared with the relevant younger cohort. The available remarriage data showed higher rates among younger cohorts. The proportionality issue therefore did not arise.
5. The claim was dismissed.