FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63684/00 by Thomas William HOBBS against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 18 June 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs E. Palm ,

Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 27 October 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Thomas William Hobbs , is a United Kingdom national, born in Ormskirk in 1921 and living in Southampton. The respondent Government are represented by Mr C.A. Whomersley, Foreign and Commonwealth Office, London.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant’s wife died on 25 February 1998.

On 11 October 2000 the applicant contacted the Inland Revenue and applied for widow’s bereavement allowance for the years 1998/9 and 1999/2000. He was informed that he did not qualify for the tax allowance, since he is a man and the law provides only for payments to widows.

B. Relevant domestic law and practice

1. The Taxes Management Act 1970 (“the 1970 Act”)

Section 1(1) of the Taxes Management Act 1970 provides:

“Income tax, corporation tax and capital gains tax shall be under the care and management of the Commissioners of Inland Revenue.”

2. The Income and Corporation Taxes Act 1988 (“the 1988 Act”)

Widow’s bereavement allowance is governed by section 262(1) of the Income and Corporation Taxes Act 1988, which provides:

“Where a married man whose wife is living with him dies, his widow shall be entitled –

(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year, and

(b) (unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year.”

There is a right of appeal against any refusal of bereavement tax allowance to the Tax Commissioners. A pending appeal against a refusal of widow’s bereavement allowance, brought by a claimant in a position equivalent to that of the applicant, was recently adjourned by the Tax Commissioners pending an outcome in the Wilkinson case (see below).

Section 34 of the Finance Act 1999 abolishes widow’s bereavement allowance in relation to deaths occurring on or after 6 April 2000.

3. The Human Rights Act 1998 (“the 1998 Act”)

Section 3(1) of the 1998 Act provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”

Section 4 of the 1998 Act provides (so far as relevant):

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (...)

(5) In this section “court” means -

(a) the House of Lords;

(b) the Judicial Committee of the Privy Council;

(c) in Scotland, the High Court of Judiciary sitting otherwise than as a trial court or the Court of Session;

(d) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.

(6) A declaration under this section (...) -

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and

(b) is not binding on the parties to the proceedings in which it is made.”

Section 6 of the 1998 Act provides (so far as relevant):

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or

(b) in the case of one or more provisions of (...) primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (...)”

Section 10 of the 1998 Act provides (so far as relevant):

“(1)This section applies if -

(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right (...)

(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”

The 1998 Act entered into force on 2 October 2000.

4. Wilkinson v Commissioners of Inland Revenue

The question of whether a claimant who had been refused widow’s bereavement allowance after 2 October 2000 on the basis of his male sex could have the decision overturned under the 1998 Act was recently examined by the High Court in the case of Wilkinson v Commissioners of Inland Revenue [2002] EWHC 182 (Admin.). In his judgment of 14 February 2002, Mr Justice Moses held that refusal to grant the allowance to a man on that basis clearly constituted a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, no objective justification for the discriminatory treatment having been advanced by the defendant Government department in the proceedings. He held also that the general power contained in section 1(1) of the 1970 Act would allow the defendant to grant an extra-statutory concession in tax affairs where failure to do so would lead to violation of a taxpayer’s Convention rights.

In light of the existence of this power under the 1970 Act, the claimant in the Wilkinson case sought to argue that section 6(1) of the 1998 Act imposed a duty on the defendant to grant him an extra-statutory allowance equivalent to the widow’s bereavement allowance. Mr Justice Moses held that:

“ ... it seems to me that the fatal flaw in the claimant’s argument is that its effect is to convert the power to give an extra-statutory allowance into a duty. It destroys the power altogether. ...

... There is no justification for the difference between the treatment of widows and widowers in the granting of the allowance and none has been proffered. The effect of [counsel for the claimant’s] submissions is to remove the power altogether and put in its place an obligation to make widowers the same allowance as widows. Neither Section 262 [of the 1988 Act] nor Section 1 of the [1970 Act] can be read as to impose an obligation to make such an allowance. It is impossible to envisage any circumstances in which the [defendant] could exercise a choice not to afford an allowance to widowers, compatibly with the Convention. ...

I conclude, accordingly, that in refusing to exercise its power to make an extra statutory allowance, the [defendant] was giving effect to primary legislation which cannot be read in a way which is compatible with the Convention. The [defendant] is entitled to rely upon Section 6(2)(b) [of the 1998 Act] and did not act unlawfully, contrary to Section 6(1), by failing to introduce an extra statutory allowance. ...

I do not agree with [counsel for the defendant] that a declaration of incompatibility would be pointless. Accordingly I shall make a declaration in relation to section 262 of [the 1988 Act] and will hear argument as to the form of order. ”

COMPLAINTS

The applicant complains that United Kingdom tax legislation discriminates against him on grounds of his sex and thus violates Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

THE LAW

A. The Government’s preliminary objection

The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, which provides (as relevant):

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, ... .”

The Government highlighted two domestic courses of action which the applicant had failed to pursue. The first was judicial review proceedings in the High Court, by which they said that the applicant could have sought an order that the responsible Government department make a payment to him equivalent to the amount of the widow’s bereavement allowance which he would have received had he been a woman. The second was an appeal to the Tax Commissioners.

The applicant argued that neither of these courses of action could have provided him with an effective remedy for his complaint.

The Court recalls that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that are effective and capable of providing redress for the complaint. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It falls to the respondent State, if it pleads non-exhaustion, to establish that the various conditions are satisfied (see, for example, the Johnston v the United Kingdom judgment of 18 December 1996, Series A no. 112, § 45).

The Court notes that, in the recent case of Wilkinson v Commissioners of Inland Revenue , the High Court determined that a decision refusing a male claimant a widow’s bereavement allowance equivalent to that to which he would have been entitled had he been a woman was not unlawful under the 1998 Act. The court reached this conclusion notwithstanding its view that such refusal constituted a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

Although the High Court in the Wilkinson case decided to make a declaration of incompatibility under section 4(2) of the 1998 Act in relation to section 262 of the 1988 Act, the Court notes the limitations of such a declaration under section 4(6) of the 1998 Act. In particular, a declaration is not binding on the parties to the proceedings in which it is made. Furthermore, by virtue of section 10(2) of the 1998 Act, a declaration of incompatibility provides the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. The minister concerned can only exercise that power if he considers that there are “compelling reasons” for doing so.

The Court notes also that the incompatibility which was subject to the declaration made in the Wilkinson case does not apply in relation to deaths occurring on or after 6 April 2000 by virtue of section 34 of the Finance Act 1999. The Government have not commented as to whether or not this renders the making of a remedial order under section 10(2) of the 1998 Act less likely in respect of cases involving claimants, like the applicant and Wilkinson himself, whose wives died before that date.

As regards the prospect of an appeal to the Tax Commissioners, the Court notes that a pending appeal against a refusal of widow’s bereavement allowance, brought by a claimant in a position equivalent to that of the applicant, was adjourned by the Tax Commissioners pending an outcome in the Wilkinson case. It notes further that the Tax Commissioners do not have a power to grant a declaration of incompatibility under section 4 of the 1998 Act and so, in this respect, its powers are even more limited than those of the High Court in judicial review proceedings.

In all the circumstances, the Court considers that the Government have failed to establish that either of the domestic remedies referred to is sufficiently “effective” so as to be capable of providing the applicant with redress for his complaint, and so as to require exhaustion under Article 35 § 1 of the Convention.

The Court therefore rejects the Government’s preliminary objection.

B. Article 14 of the Convention taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1

The applicant complains that the refusal of his application for widow’s bereavement allowance for the years 1998/9 and 1999/2000 discriminates against him on grounds of his sex and thus violates Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this 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 8 provides (as relevant):

“1.  Everyone has the right to respect for his private and family life ... .

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ... .”

Article 1 of Protocol No. 1 provides:

“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.

2.  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.”

The Government do not make any submission on the merits of the application.

The Court considers that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää              Registrar              President