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FOURTH SECTION
CASE OF PEARSON v. THE UNITED
KINGDOM
(Application no. 8374/03)
JUDGMENT
STRASBOURG
22
August 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the
case of Pearson v. the United Kingdom,
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas
Bratza,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having deliberated in private on 27
April 2004 and 11 July 2006,
Delivers the following judgment, which
was adopted on the last mentioned date:
PROCEDURE
- The case originated in an
application (no. 8374/03) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a British national,
Mr Sydney George Pearson (“the applicant”), on 27
February 2003.
- The United Kingdom
Government (“the Government”) were represented by their
Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.
- The applicant complained
that as a man he was unable to receive his State pension until age 65
whereas a woman could claim her State pension at age 60. He invoked
Article 14 of the Convention in conjunction with Article 1 of
Protocol No. 1.
- The application was
allocated to the Fourth Section of the Court (Rule 52 § 1
of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
- By a decision of 27 April
2004, the Court declared the application partly admissible.
- The applicant, but not
the Government, filed observations on the merits (Rule 59 § 1).
The Chamber decided, after consulting the parties, that no hearing on
the merits was required (Rule 59 § 3 in fine).
- Following the judgment of
the Grand Chamber in Stec and Others v. the United Kingdom
[GC], nos. 65731/01 and 65900/01, 12 April 2006), the applicant and
the Government submitted further observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1942 and lives in Birmingham.
- The applicant, aged sixty
three, would not become eligible for a State pension until he was
sixty five, whereas a woman could claim a State pension from age
sixty. He was currently unemployed but if he returned to work he and
any potential employer would be liable to make national insurance
contributions.
- On 4 February 2002, the
applicant issued proceedings for damages in the High Court against
the Benefits Agency, alleging inter alia that the refusal to
pay him a pension from the age of sixty was discriminatory. On
2 October 2002, the applicant’s claim was struck out on
the basis that the particulars of claim disclosed no reasonable
grounds for bringing the claim (Civil Procedure Rule 3.4.2.). On 27
February 2003, permission to appeal was refused.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section 122 of the
Social Security Contributions and Benefits Act 1992 defines
“pensionable age” as:
“(a) the age of 65, in the case of a
man; and
(b) the age of 60, in the case of a woman”.
- Section 126 of the
Pensions Act 1995 provides for the equalisation of State pension ages
for men and women to the age of 65. The State pension age for women
will increase gradually from 2010 and the equalisation will be
complete in 2020. At the same time, the age until which women are
liable to pay national insurance contributions will gradually
increase in line with the increase in the State pension age.
III. EUROPEAN UNION LAW
- Council Directive
79/7/EEC of 19 December 1978 provides for the progressive
implementation of the principle of equal treatment for men and women
in matters of social security. However, in Article 7(1)(a) the
Directive provides for derogation in the matter of “the
determination of pensionable age for the purposes of granting old-age
and retirement pensions and the possible consequences therefore for
other benefits”.
- In Case C-9/91 The
Queen v. Secretary of State for Social Security, ex parte Equal
Opportunities Commission [1992] ECR 1-4297 (“the EOC case”
concerning a reference for a preliminary ruling from the High Court),
the European Court of Justice found that:
Article 7(1)a had to be interpreted as authorising the
determination of a statutory pensionable age which differs according
to sex for the purposes of granting old-age and retirement pensions
and also forms of discrimination which are necessarily linked to
that difference;
Inequality between men and women with respect to the length
of contribution periods required to obtain a pension constitutes
such discrimination where, having regard to the financial
equilibrium of the national pension system in the context in which
it appears, it cannot be dissociated from a difference in
pensionable age;
In view of the advantages allowed to women by national
pension systems, in particular as regards statutory pensionable age
and length of contribution periods, and the disruption that would
necessarily be caused to the equilibrium of those systems if the
principle of equality between the sexes were to be applied from one
day to the next in respect of those periods, the Community
legislature intended to authorise the progressive implementation of
that principle by the member States and that progressive nature
could not be ensured if the scope of the derogation authorised by
Article 7(1)a were to be interpreted restrictively.
THE LAW
ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION
WITH ARTICLE 1 OF PROTOCOL No. 1
- The applicant complained
that his entitlement to a State pension accrued at age 65, five years
later than for a woman. The relevant provisions of the Convention
provide:
Article 14 of the Convention:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article 1 of Protocol No. 1:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties’ submissions
1. The applicant
- The applicant considered
that it was blatant discrimination that almost double the number of
women to men were in receipt of the State pension yet they had paid
less towards the fund, became eligible earlier and lived longer. Men
also had increasing difficulty in finding employment, over half of
men over 50 being unemployed, forced into early retirement or in low
paid part-time jobs.
- The applicant criticised
the Government’s policy in reducing the value of the pension
and availability of pensions, submitting that economic reasons did
not justify the failure to provide pensions in accordance with their
citizens’ human rights since they were able to find billions of
pounds for military and security purposes and also to subsidise the
private company pension schemes. Given the National Insurance Fund
had a GBP 30 billion surplus, there was, in his view, no legal or
economic basis preventing the Government from equalising State
pensions immediately.
- The applicant considered
there was a blatant violation of European Union directives, the Human
Rights Act and the European Union Social Charter. The Government had
for over twenty years made excuses for not equalising State pensions,
although economically stronger than France and other countries that
did conform. He argued, as regarded the Government’s position
that it was necessary to wait to 2020 for equalisation as the change
could affect women’s lifestyles, that this had no relevance to
human rights or equality and did not justify denying the other half
of the population their rights.
2. The Government
- The Government accepted
that Article 1 of Protocol No. 1 applied to the case and that Article
14 was applicable to any discrimination in relation to the
availability of the State retirement pension. They submitted that the
differential age for men and women had, however, an objective and
reasonable justification. They emphasised that the social, historic
and economic basis for the provision of the State retirement pension,
as well as the decision to equalise the age progressively from
2010-2020 involved complex social and economic judgments in respect
of which the Government enjoyed a broad margin of appreciation. It
was not a simple case of sex discrimination but involved issues of
fair balance under Article 1 of Protocol No. 1 where the Court had
stated that it would respect the legislator’s assessment in
such matters unless it was devoid of reasonable foundation.
- The Government submitted
that Parliament decided to implement the reform to equalise State
pensionable ages from 2020 as the measure had enormous financial
implications both for individuals and the State. In particular,
sudden change would adversely affect the interests of women who had
been expecting to receive a State pension at age 60 and a long
transitional period gave time for people to adjust their expectations
and arrange their affairs accordingly. Nor would it be economically
feasible for the Government to provide all 60-year-old men with
pensions pending equalisation in 2020 as it would involve the
diversion of substantial resources from other State needs (an
estimated cost of GBP 75 billion). After a full public consultation
exercise, the Government decided to bring the age up to 65 for all
based on the considerations that people lived longer and healthier
lives, there would be more pensioners supported by fewer people of
working age, public expenditure on pensions was set to double by 2035
and occupational schemes were predominantly equalising at the age of
65 already. They pointed out that the European Union had accepted
that member States must be allowed a period of transition to plan and
implement the move to equal ages. The United Kingdom’s plans
were in line with other developed nations and the European Commission
had never suggested that its measures were in any way deficient or
disproportionate but had impliedly accepted them.
- The Government referred
to the recent judgment in Stec and Others v. the United Kingdom
[GC], nos. 65731/01 and 65900/01, 12 April 2006, submitting that this
had addressed and disposed of the material issues in the case, in
particular that there was a very generous margin of appreciation and
that the decisions as to the precise timing and means of putting
right the inequality were not so manifestly unreasonable as to exceed
this margin.
B. The Court’s assessment
- Article 14 of the
Convention has no independent existence; it has effect solely in
relation to “the enjoyment of the rights and freedoms”
safeguarded by those provisions. There can be no room for its
application unless the facts at issue fall within the ambit of one or
more of them (see, amongst other authorities, Gaygusuz v. Austria,
judgment of 16 September 1996, Reports of Judgments and Decisions,
1996-IV, § 36). The Court notes that the Government do not
contest in this case that the right to receive a State pension falls
within the scope of Article 1 of Protocol No. 1 and thus that Article
14 is applicable to any complaint of discrimination in that respect.
Article 14 is accordingly engaged.
- The principal issue in
this case is whether the difference in treatment whereby this
applicant was unable to receive his State pension until the age of 65
whereas a woman became entitled at age 60, discloses discrimination
contrary to Article 14 of the Convention.
- According to the Court’s
case-law, a difference in treatment is discriminatory for the
purposes of Article 14 if it “has no objective and reasonable
justification”, that is if it does not pursue a “legitimate
aim” or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised. The Contracting States enjoy a certain margin of
appreciation in assessing whether or not and to what extent
differences in otherwise similar situations justify a different
treatment. However, very weighty reasons are required before the
Court would regard a difference of treatment based exclusively on the
grounds of sex as compatible with the Convention (see, among other
authorities, Willis v. the United Kingdom, no. 36042/97, ECHR
2002-IV, § 39).
- Against this must be
balanced the countervailing proposition that the margin of
appreciation available to the legislature in implementing social and
economic policies should be a wide one (see, inter alia, James
v. the United Kingdom, judgment of 21 February 1986, Series A,
no. 98, § 46). This applies to systems of taxation or
contributions which must inevitably differentiate between groups of
tax-payers and the implementation of which unavoidably creates
marginal situations. A Government may often have to strike a balance
between the need to raise revenue and reflecting other social
objectives in taxation policies. The national authorities are
obviously in a better position than the Court to assess those needs
and requirements, which in the present case involve complex concerns
about the financing of pensions which impact on the community as a
whole. In such an area the Court will generally respect the
legislature’s policy choice unless it is manifestly
unreasonable (see, as the latest authority, Stec and Others v. the
United Kingdom, cited above, § 52).
- The Court recalls that
in the afore-mentioned Stec case the Grand Chamber had
occasion to examine the alleged inequality arising out of entitlement
to the reduced earnings allowance which was linked to the State
pension. It had this to say about the difference in treatment between
men and women as regarded the State pension age.
“61. Differential pensionable ages were first
introduced for men and women in the United Kingdom in 1940, well
before the Convention had come into existence, although the disparity
persists to the present day (see paragraph 32 above). It would appear
that the difference in treatment was adopted in order to mitigate
financial inequality and hardship arising out of the woman’s
traditional unpaid role of caring for the family in the home rather
than earning money in the workplace. At their origin, therefore, the
differential pensionable ages were intended to correct ‘factual
inequalities’ between men and women and appear therefore to
have been objectively justified under Article 14 (see paragraph 51
above).
62. It follows that the difference in pensionable ages
continued to be justified until such time that social conditions had
changed so that women were no longer substantially prejudiced because
of a shorter working life. This change, must, by its very nature,
have been gradual, and it would be difficult or impossible to
pinpoint any particular moment when the unfairness to men caused by
differential pensionable ages began to outweigh the need to correct
the disadvantaged position of women. Certain indications are
available to the Court. Thus, in the 1993 White Paper, the Government
asserted that the number of women in paid employment had increased
significantly, so that whereas in 1967 only 37% of employees were
women, the proportion had increased to 50% in 1992. In addition,
various reforms to the way in which pension entitlement was assessed
had been introduced in 1977 and 1978, to the benefit of women who
spent long periods out of paid employment. As of 1986, it was
unlawful for an employer to have different retirement ages for men
and women (see paragraph 33 above).
63. According to the information before the Court, the
Government made a first, concrete, move towards establishing the same
pensionable age for both sexes with the publication of the Green
Paper in December 1991. It would, no doubt, be possible to argue that
this step could, or should, have been made earlier. However, as the
Court has observed, the development of parity in the working lives of
men and women has been a gradual process, and one which the national
authorities are better placed to assess (see paragraph 52 above).
Moreover, it is significant that many of the other Contracting States
still maintain a difference in the ages at which men and women become
eligible for the State retirement pension (see paragraph 37 above).
Within the European Union, this position is recognised by the
exception contained in the Directive (see paragraph 38 above).
64. In the light of the original justification for the
measure as correcting financial inequality between the sexes, the
slowly evolving nature of the change in women’s working lives,
and in the absence of a common standard amongst the Contracting
States (see Petrovic, cited above, §§ 36-43), the Court
finds that the United Kingdom cannot be criticised for not having
started earlier on the road towards a single pensionable age.
65. Having once begun the move towards equality,
moreover, the Court does not consider it unreasonable of the
Government to carry out a thorough process of consultation and
review, nor can Parliament be condemned for deciding in 1995 to
introduce the reform slowly and in stages. Given the extremely
far-reaching and serious implications, for women and for the economy
in general, these are matters which clearly fall within the State’s
margin of appreciation.”
- The alleged
discrimination in the present case concerns exactly the difference in
ages of entitlement to the State pension discussed above. In light of
the Grand Chamber’s finding that the policy adopted by the
legislature in deferring equalisation of the pension age for men and
women until 2020 fell within the State’s margin of
appreciation, the Court cannot but reach the same conclusion in the
present case.
- There has, accordingly,
been no violation of Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that
there has been no violation of Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 of the Convention.
Done in English,
and notified in writing on 22 August 2006, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
