SHARON GREEN v THE COMMISSIONER OF POLICE OF THE METROPOLIS

Article 12 protects a strong, but not absolute, right to marry. National laws may regulate its exercise for a legitimate purpose, provided they do not impair the essence of the right or impose an arbitrary or disproportionate restriction. Article 12 does not import the Article 8(2) tests of necessity or pressing social need. The assessment is contextual and evaluative. An appellate court should not re-evaluate that assessment unless an identifiable flaw undermines the conclusion. Ending a survivor’s police pension on remarriage or cohabitation was not a penalty on marriage and did not breach Article 12.

Three survivors of police officers challenged Regulation C9(3) of the Police Pensions Regulations 1987, which ended survivor pension benefits on remarriage, formation of a civil partnership or cohabitation. They relied principally on Article 12, together with other Convention rights. Fordham J rejected the claims, holding that the provision did not impair the essence of the right to marry: [2022] EWHC 1286 (Admin).

The appeal was confined to Article 12. The appellants argued that the judge had conflated the Article 12 test with the justification analyses under Articles 8 and 14. The central issue was whether the judge had applied the correct legal test and whether his evaluative conclusion disclosed an appealable error.

Lady Justice Asplin gave the leading judgment. Lord Justice Peter Jackson and Lord Justice Bean agreed.

1. The appeal was dismissed. Article 12 protects a strong right, but not an absolute one. It contains no equivalent to Article 8(2), so the court does not apply the tests of necessity or pressing social need. National laws may regulate the substance or procedure of marriage for a legitimate purpose, but must not restrict the right so far that its essence is impaired. The interference must not be arbitrary or disproportionate, and any restriction must remain within a reasonable limit for attaining the legitimate purpose.
2. The judge had not conflated Articles 8, 12 and 14. He had identified the distinct character of Article 12 and had applied the required contextual and evaluative assessment. The precise ambit of the phrase national laws governing the exercise of the right to marry was left for another case because the appeal had not been argued on that point in detail.
3. Regulation C9 had to be assessed in its pension-scheme context. Survivor benefits formed part of a contributory scheme designed, costed and funded by reference to members’ service and contributions. The benefit was inherently defeasible on the specified events. Its cessation was therefore not a penalty or levy on marriage. The provision was not directed at marriage alone, since it also applied to cohabitation, and the prospective replacement scheme providing lifetime survivor benefits was relevant context.
4. The judge’s proportionality conclusion was an evaluative judgment. An appellate court should not conduct the assessment afresh unless there is an identifiable flaw, such as a gap in logic, inconsistency or failure to consider a material factor, which undermines the cogency of the conclusion. No such flaw was shown. Regulation C9 did not impair or injure the essence of the Article 12 right, substantially interfere with or unreasonably inhibit its exercise, or operate arbitrarily, disproportionately or unjustly.

• Court of Appeal (Civil Division): The appeal was dismissed on 21 December 2022. The court upheld the conclusion that Regulation C9 was compatible with Article 12: [2022] EWCA Civ 1686.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Fordham J rejected the survivors’ judicial review claims and held that Regulation C9 did not infringe their Convention rights: [2022] EWHC 1286 (Admin).