Joint Committee On Human Rights Appendices to the Minutes of Evidence


1. Letter from the Chairman to Rt Hon Gordon Brown MP, Chancellor of the Exchequer, on the National Insurance Contributions Bill

The Committee is considering whether to report to each House on the above Bill. It has carried out an initial examination of this Bill in the light of advice from its legal adviser and evidence submitted by PARITY. The Committee would be grateful for your comments on the following points. Our starting­point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

DISCRIMINATION ON THE GROUND OF SEX IN THE ENJOYMENT OF THE RIGHT TO PEACEFUL ENJOYMENT OF POSSESSIONS

The imposition of an additional rate of national insurance contributions under clauses 1, 2 and 3 of the Bill would engage the right to the peaceful enjoyment of people's possessions under Article 1 of Protocol No. 1 to the ECHR. (Although the second paragraph of Article 1 allows the State 'to enforce such laws as it deems necessary ... to secure payment of taxes or other contributions', the Article may still control the imposition of liabilities.) The Committee is provisionally of the view that the interference would be justifiable under Article 1 standing alone, because it would be in the general interest and would be held to represent a fair balance between the general interest and the rights of people who pay National Insurance contributions.[1] However, the imposition of liability to the additional rate would appear to differentiate between men and women on the ground of sex, as men would be subject to the additional rate to the age of 65, whereas women would be subject to it only to the age of 60.[2] This might engage the right to be free from discrimination in the enjoyment of other Convention rights, conferred by ECHR Article 14. In order for differential treatment to be justified under Article 14, there must be an objective and rational justification for treating men and women differently in the context in question. Because clauses 4 and 5 of the Bill would require the product of the additional rate to be allocated towards the cost of the national health service, the context appears to be differential treatment in relation to contributions towards the operation of the national health service.

The Committee seeks your view on the following questions—

1.  Do you agree that the provisions of the Bill may engage rights under ECHR Article 14, taken together with Article 1 of Protocol No. 1 to the ECHR?

2.  If so, do you agree that the justification for the differential treatment of men and women must take account of the fact that the product of the additional rate will be allocated to the cost of the national health service?

3.  If so, why have you concluded that the difference in treatment between men and women in respect of the additional rate is objectively and rationally justified in the context of the imposition of an additional rate of national insurance contributions to support the national health service?





DISCRIMINATION BETWEEN MEN AND WOMEN AND THE SOCIAL SECURITY DIRECTIVE UNDER COMMUNITY LAW

The Social Security Directive, Council Directive 79/7/EEC, provides for the progressive implementation of the principle of equal treatment in the field of social security, including statutory schemes which provide protection against (inter alia) sickness, invalidity, accidents at work and occupational diseases (Articles 1 and 3).

4.  The Committee seeks your view as to whether the principle of equal treatment in the field of social security, etc. includes support provided through the National Health Service?

Men and women are treated differently in respect of national insurance contributions: men are liable to pay contributions to the age of 65, whereas women pay to the age of 60. This difference, resulting from different statutory retirement ages for men and women, would apply to the additional rate of national insurance contributions under the Bill. The European Court of Justice has held that a delay in eliminating the different treatment of men and women in respect of the liability to pay national insurance contributions could be justified under Article 7(1)(a) of the Directive if the discrimination is 'found to be necessary in order to achieve the objectives which the Directive is intended to pursue by allowing Member States to retain a different pensionable age for men and women.'[3] The Court decided that the retention of differential treatment was acceptable—

to allow Member States to retain temporarily the advantages accorded to women with respect to retirement in order to enable them progressively to adapt their pensions systems in this respect without disrupting the complex financial equilibrium of those systems, the importance of which could not be ignored.[4]

5.  Do you consider that the justification described above (to retain temporarily the advantages accorded to women with respect to retirement) could be maintained in respect of the additional rate of contributions proposed by the Bill, in the light of the fact that the product of the additional rate would be allocated to the National Health Service rather than being divided between the pension scheme and the National Health Service?

6.  If not, on what other ground of justification would you rely to establish the compatibility of the Bill with the Social Security Directive?

Finally, could you inform the Committee of any representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

In order to be able to report before Parliament has completed its consideration of the Bill, the Committee would be grateful for a reply to these questions by 10 June.

22 May 2002


1   The European Court of Human Rights has said that it will defer to the legislature's assessment of appropriate tax liabilities unless it is 'devoid of reasonable foundation': Gasus Dösier- und Fördertechnik GmbH v. Netherlands (1995) 20 EHRR 403 at § 60 of the Judgment. Back

2   The previous Government announced its intention to phase in a retirement age of 65 for both men and women between 2010 and 2020: Equality in State Pension Age, Cm. 2420 (London: HMSO, 1993). Back

3   Case C-9/91, R. v. Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] I-ECR 4297 at para. 13 of the Judgment. Back

4   Ibid., para. 15. Back


 
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