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) (HTML version), (2005)

Status: [2005] UKHL 29

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Extract

HOUSE OF LORDS

SESSION 2004-05

[2005] UKHL 29

on appeal from: [2003] EWCA Civ 813

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

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)

THURSDAY 5 MAY 2005

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

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)

[2005] UKHL 29

LORD NICHOLLS OF BIRKENHEAD

1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow the appeals of the Secretary of State and dismiss the appeals of the widowers.

2. I add a note on one point, concerning the claims in respect of widow's payment and widowed mother's allowance under sections 36 and 37 of the Social Security Contributions and Benefits Act 1992. The widowers' claim is that non-payment of corresponding amounts to them was unlawful discrimination. Non-payment of these amounts to them, it is said, violated their Convention right under article 14 read with article 1 of Protocol 1. Accordingly the Secretary of State's failure to make corresponding payments to widowers was unlawful under section 6(1) of the Human Rights Act 1998. By failing to make such payments the Secretary of State acted incompatibly with the claimants' Convention right.

3. The Secretary of State's primary defence to this claim lies in section 6(2) of the Human Rights Act. Your Lordships are all of the opinion that this defence is well-founded. I agree. There is a measure of disagreement on whether the applicable paragraph of section 6(2) is paragraph (a) or paragraph (b). In my view it is not necessary to decide which is the applicable paragraph in this case and there is good reason for not doing so. It is not necessary because it is clear that one paragraph or the other is applicable. It is not desirable because a decision on which paragraph is applicable cannot be reached without first deciding a legal point which is better left for decision on another occasion.

4. Let me explain. Whether the limb of section 6(2) applicable in the present case is paragraph (a) or paragraph (b) depends upon the view taken of the Secretary of State's common law powers. That is the starting point. Under the Social Security Contributions and Benefits Act 1992 Parliament made provision for payment of benefits to widows, but not widowers. The parliamentary intention in this regard was abundantly clear. If the effect of this statutory provision was that thereafter the Secretary of State acting on behalf of the Crown could not lawfully have made corresponding payments to widowers in exercise of the Crown's common law powers, then the present case would fall squarely within section 6(2)(a). If the Secretary of State could not lawfully have made corresponding payments to widowers he could not have acted otherwise than he did.

5. The Secretary of State, however, does not contend he lacked power to make corresponding payments to widowers and that therefore the case falls within paragraph (a). Mr Sales submitted that the Secretary of State, acting on behalf of the Crown, had power and retained power to make such payments. Mr Goudie QC, of course, made a similar submission. Indeed, the foundation of the widowers' case is that the Secretary of State had such a power. The widowers' case is that the Secretary of State had such a power and, unlawfully, failed to exercise it.

6. Whether the Crown, in exercise of its common law powers, could lawfully have made corresponding payments to widowers is a difficult question with far-reaching constitutional implications. I prefer to express no view on this issue in the absence of fuller argument. This issue would be better decided in a case where, unlike the present case, the contrary argument is presented. This issue does not call for decision in the present case because, either way, section 6(2) provides a defence for the Secretary of State. If the Secretary of State could not lawfully have paid the widowers the case falls within paragraph (a) as already mentioned. If ...

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