SHARON GREEN & ORS. v METROPOLITAN POLICE COMMISSIONER & ANOR.

A pension rule which stops survivor benefits when the recipient remarries, forms a civil partnership or cohabits may seriously interfere with private and family life and may inhibit relationships. That impact does not, however, necessarily make the rule incompatible with Articles 8, 12 or 14 of the Convention. In assessing proportionality, the court must consider the pension scheme’s design, funding, contribution structure and the principle of Basic Prospectivity. A socially outdated originating rationale may subsist where the rule forms part of a coherent contributory scheme and its retention results from conscious policy-making. The creation of a new scheme offering enhanced benefits, with an opportunity for active members to transfer, may provide a proportionate alternative. The rule was therefore objectively justified and did not impair the essence of the right to marry.

The claimants were recipients of survivor pensions under the 1987 police pension scheme. Regulation C9 stopped payment when a recipient remarried, formed a civil partnership or lived with a partner as husband and wife or as civil partners. The claimants challenged the retention and operation of the rule under Articles 8, 12 and 14 read with A1P1 of the Convention. One claimant had lost his pension after cohabiting; the others remained inhibited from developing relationships because of the risk of losing their pensions. The central issues were whether Regulation C9 interfered with the right to marry and private and family life, whether it created unjustified differences in treatment, and whether its retention was proportionate.

1. Claim dismissed. Regulation C9 and its retention in the 1987 police pension scheme were compatible with the Convention rights relied upon. Permission to appeal was granted on the Article 12 issue and on the Article 8 and Article 14 justification issues.
2. Regulation C9 caused significant interference with private and family life. Its operation had a concrete chilling effect on relationships and necessarily involved some scrutiny of recipients’ private lives. Applying the Basic Four-Stage Proportionality Discipline, however, the interference was justified.
3. The legitimate objectives were preserving the integrity of a contributory pension scheme, maintaining clear rules designed and costed on the basis of active members’ contributions, avoiding unfunded liabilities and adhering to Basic Prospectivity. Retrospective enhancement of benefits would undermine those objectives. A new scheme introduced in 2006, offering survivor benefits payable for life and allowing relevant active members to transfer, was a less intrusive and coherent policy response.
4. The fact that Regulation C9 had an outdated historic rationale did not itself defeat justification. The rule was part of a wider scheme and had been retained following conscious and contemporaneous policy decisions. The financial and inter-generational implications of removing it were significant, including for other public service pension schemes.
5. The difference between recipients whose deceased partners died in the line of duty and others was justified. A death in the line of duty represented a distinct form of loss and provided a coherent basis for the limited retrospective exception allowing benefits to remain payable for life.
6. Article 14 was engaged. The relevant statuses and comparable situations were established, but the differences in treatment were objectively justified. The socio-economic policy context warranted substantial latitude, and the measure was not manifestly without reasonable foundation.
7. Article 12 was not breached. Regulation C9 was not a law governing the exercise of the right to marry, was not targeted at marriage, and was not a penalty or levy on marriage or cohabitation. It did not impair or injure the essence or substance of the right to marry, nor substantially interfere with or unreasonably inhibit its exercise.

This was a first-instance judicial review claim transferred from the Queen’s Bench Division to the Administrative Court. The court granted permission to appeal on specified Article 12, Article 8 and Article 14 grounds.