SHARON GREEN v THE COMMISSIONER OF POLICE OF THE METROPOLIS

The Court of Appeal considered whether regulation C9(3) of the Police Pensions Regulations 1987, which provides for termination of a widow’s or civil partner’s pension on remarriage, new civil partnership or cohabitation, is compatible with Article 12 (the right to marry) of the European Convention on Human Rights as incorporated by the Human Rights Act 1998. The court accepted that Article 12 is a "strong" right and that national laws governing the exercise of the right may not impair its essence.

Applying the established authorities (including Baiai, O'Donoghue, F v Switzerland and Goodwin) the court framed the task as a composite question whether the impugned measure injures or impairs the essence or substantially interferes with the right to marry, asking whether any interference is arbitrary, disproportionate or unjust. It held that regulation C9(3) did not impair the essence of the right to marry.

The court upheld the judge below in concluding that retention of C9(3) in the contributory Police Pension Scheme had objective justification: survivors’ pensions are referable to contributory service, the rules were part of a designed and costed scheme (Basic Prospectivity), a deliberate policy response (including a new scheme, NPPS) addressed the outdated rationale, significant economic consequences would follow removal of the rule, and there was a legitimate policy margin for the Home Secretary. On that basis the appeal was dismissed.

This was an appeal from Fordham J (Administrative Court) ([2022] EWHC 1286 (Admin)) challenging the compatibility of regulation C9(3) of the Police Pensions Regulations 1987 (PPR87) with Article 12 ECHR. Regulation C9(3) provides for cessation of survivors’ pensions on remarriage, formation of a new civil partnership or cohabitation.

Background and parties:

• The Police Pension Scheme (PPS) is a contributory public service pension scheme; survivors’ pension benefits (SPBs) under the PPS could cease under regulation C9(3) on remarriage or cohabitation.
• The appellants were three survivors of deceased police officers who had either had pensions terminated (on cohabitation) or feared termination (on remarriage/cohabitation).
• The Commissioner of Police of the Metropolis administered the scheme and took a neutral stance; the Secretary of State for the Home Department was an interested party and defended the compatibility of the regulation.

Nature of the claim / relief sought:

• The appellants sought judicial review and contended that application of C9(3) breached Article 12 (right to marry) and Articles 8 and 14 and A1P1 in various combinations. They sought declarations of incompatibility and remedies arising from human rights breaches; the appeal to the Court of Appeal was confined to the Article 12 challenge.

Issues framed:

1. Whether regulation C9(3) is within the scope of Article 12 as a law "governing the exercise" of the right to marry.
2. If Article 12 is engaged, whether the regulation impairs the essence or substantially interferes with the right to marry (that is, whether it is arbitrary, disproportionate or unjust).
3. Whether retention of C9(3) could be objectively justified in the context of a contributory pension scheme (including issues of prospectivity, scheme integrity, policy choices and economic consequences).

Court’s reasoning and decision:

• The Court of Appeal accepted the judge’s distillation of Article 12 authorities: Article 12 is a strong right but subject to national laws which must not impair the essence of the right.
• The court adopted a "composite" approach: asking whether, in all the circumstances and having regard to the State’s margin of appreciation, the impugned measure impairs the essence of the right by being arbitrary, disproportionate or unjust. The standard is not the Article 8(2) necessity test but retains the structured proportionality considerations (legitimate objective, rational connection, less intrusive alternatives and fair balance) applied in an Article 12 context.
• The judge’s detailed findings (the twelve features) supported the conclusion that the Home Secretary had discharged the onus of justification: SPBs are tied to contributory service, the rules formed part of a costed scheme to which members contributed, a deliberate policy response was effected by creating the NPPS (which offered life SPBs and opportunity to transfer), line-of-duty deaths were treated differently, and there were substantial economic consequences of disapplying C9(3) across public service pension schemes.
• The court rejected the appellants’ argument that the judge had conflated Article 12 with Articles 8 and 14 or applied an incorrect test focused unduly on broad social policy. It held the judge asked the right composite question, applied correct legal principles and reached an evaluative judgment within the permissible margin of appreciation.

Procedural path: Appeal from the Administrative Court (Fordham J) [2022] EWHC 1286 (Admin) to the Court of Appeal, which dismissed the appeal ([2022] EWCA Civ 1686).

Appeal dismissed. The Court of Appeal held that regulation C9(3) of the Police Pensions Regulations 1987 did not impair the essence of the right to marry under Article 12 ECHR. The court applied the established Article 12 jurisprudence, treated the question as a composite one of whether the measure was arbitrary, disproportionate or unjust, and concluded that the retention and application of C9(3) in the contributory PPS was objectively justified given scheme design, prospectivity, alternative scheme options (NPPS), line-of-duty exceptions and significant economic consequences of disapplying the rule.

Appeal from the Administrative Court (Mr Justice Fordham), High Court of Justice, Queen's Bench Division (Administrative Court) [2022] EWHC 1286 (Admin), to the Court of Appeal which delivered judgment in [2022] EWCA Civ 1686.