Neutral Citation Number: [2008] EWHC 1119 (Admin)
Case No: CO/71/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/05/2008 

Before :

THE HONOURABLE MR JUSTICE WYN WILLIAMS
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Between :

	THE QUEEN OF ON THE APPLICATION OF CLIVENA BARBARA OLIVE THOMAS
	
Claimant	
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MINISTRY OF DEFENCE 	
Defendant	

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The Claimant appeared in person, assisted by Brian Leonard Friend, 
her Mackenzie friend.
The Defendant did not appear and was not represented

Hearing dates: 8 May 2008
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Judgment 

Mr Justice Wyn Williams : 

1.	In R(Susan Joan Smith) v Secretary of State for Defence [2004] EWHC 1797 (Admin) Wilson J (as he then was) considered the following question.
“When, upon divorce, a pension sharing order takes effect in favour of an ex-wife under the age of 60, then, insofar as the law prevents her share of the pension from coming into payment until she attains that age while at the same time permitting the ex-husband, also under the age of 60, to receive payments of pension referable to his share, is it incompatible with her human rights?”
Wilson J decided that it was not. In summary he concluded that sections 101B and 101C(1) of the Pension Schemes Act 1993 (referred to by him and by me hereinafter as “the impugned provision”) did not infringe the Claimant’s rights under Article 1 Protocol 1 or Article 8 of the European Convention. Nonetheless, the Learned Judge held that the impugned provision fell within the ambit of those articles and, accordingly, the Claimant had a right under Article 14 to enjoy them without discrimination on any ground “such as sex … or other status”. Wilson J next held that the impugned provision differentiated not only directly on grounds of age but also indirectly on grounds of gender when its effect was to delay payment of pension to the Claimant until she reached the age of 60. However, he considered that this differentiation was justified and, accordingly, there was no breach of Article 14.
2.	The Claimant, Lady Smith, applied for permission to appeal to the Court of Appeal but her application was refused.
3.	In the instant case the Claimant is also assisted by Mr Friend. She, too, has the benefit of a pension sharing order. Like the Claimant in Smith she has not yet reached the age when, under the impugned provision, payment of the pension can be made to her yet her ex-husband is being paid his share notwithstanding, as I understand it, that he is only about 50 years old.
4.	Notwithstanding the decision in Smith, however, the Claimant has issued proceedings for judicial review. She has done so because, so it is submitted, there is a line of argument open to her to support the proposition that the impugned provision considered by Wilson J is unlawful. This is a line of argument not pursued in Smith. In summary it is that the impugned provision falls foul of European Community law and, that being so, this Court should declare that it is invalid.
5.	For reasons which I will develop, however, I consider the proposition which she advances to be unarguable and, consequently I refuse permission to pursue a claim for judicial review.
6.	The salient facts can be stated quite shortly. The Claimant and her former husband married on 19 April 1986. They had two children born, respectively, in 1987 and 1989. Captain Thomas, as he was at the date of the marriage rose to the rank of Lieutenant Colonel. Lieutenant Colonel Thomas retired on 30 September 2005. He was then aged 49 and he immediately started to receive his full pension of £1,800 per month approximately.
7.	On 10 May 2006 the Claimant was granted a decree nisi of divorce. In the ancillary relief proceedings a pension sharing order was made which took effect on 5 October 2006. From that date Lieutenant Colonel Thomas’ pension was reduced by half so that he is now paid approximately £900 per month. Under the impugned provision the Claimant cannot receive her half of the pension for many years.
8.	It is not necessary in this short judgment to set out what I have called the impugned provision. It is common ground that under domestic law the Claimant’s share of the pension will not be paid for many years whereas it is lawful for her ex-husband to be paid his share. It is the case for the Claimant that this is discriminatory and a breach of European Community Law.
9.	I am perfectly prepared to accept that it is open to the Claimant to pursue an argument to the effect that the domestic law is discriminatory – Wilson J found that it was in the context of the European Convention on Human Rights. I am also satisfied that nothing decided in Smith precludes the Claimant from seeking to argue that the legislation is discriminatory in the context of European Community Law. The issue for me, therefore, at the permission stage is whether or not it is reasonably arguable that the impugned provision falls foul of the anti-discrimination provisions of European Community Law.
10.	The focus of Mr Friend’s submissions is that the deferred pension right awarded to the [Claimant] as a former spouse on divorce must be considered as being pay in the sense of Article 141(1) of the European Community Treaty and, therefore, the pension right is protected from discrimination on the grounds of gender by the provisions of Article 13(5) of the EC Treaty and Council Directive 86/378 (EEC) notwithstanding that the discrimination suffered by the Claimant is accepted to be indirect.
11.	In summary I simply do not see how a pension sharing order converts the sum payable to the Claimant under the order to pay. Pay is defined in Article 141(2) of the Treaty as “the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment from his employer”.
12.	I fully understand how the pension received by Lieutenant Colonel Thomas may have been pay within that Article but I do not see how an order in ancillary relief proceedings following a divorce to the effect that his former wife should receive part of that pension, converts it into pay so far as she is concerned.
13.	On that basis, Article 13(5) and the Directive to which Mr Friend refers do not take the case any further.
14.	As Sullivan J said when refusing permission:
“The amended grounds acknowledge that the Court of Appeal has decided that the PSO Regulations are not in breach of ECHR. In these circumstances it is difficult to see why they are in breach of EEC Law, as asserted. The Regulations do treat all pensioners who have spouses equally. There is no requirement in EEC Law that a pensioner should be treated in the same way as their spouses (or vice-versa).”  
I agree with those sentiments and despite Mr Friend’s best endeavours I do not think that the provisions of European Law to which I have referred, above, assist the Claimant.
15.	Accordingly I refuse permission to apply for judicial review. As I said I would, I have also considered whether or not I should grant permission to appeal. I have done so in advance of handing down this short judgment so as to save Mr Friend and/or the Claimant the trouble of making an oral application for permission with the consequent need to travel to London.
16.	I take the view that the legal point which Mr Friend raises is, in truth, very likely to fail. It is, in my judgment, close to being completely unarguable. I certainly do not regard it as reasonably arguable. That being so it would not be appropriate for me to grant permission to appeal to the Court of Appeal. As Mr Friend well knows he has the right to make an application for permission to appeal to the Court of Appeal and he should make his application within 21 days of the 22 May 2008 if he considers it appropriate so to do.