Dear Michael,
I am not sure if you remember me (Nigel Nelson), but I worked for Lovells for nearly 20 years in the Finance Department – I worked with John Smith and Nick Cray for many years on stabilising and enhancing various accounting systems used by the firm.
We shared an interest in Bermuda during the BCCI litigation given that I lived and worked there in 1984-85. You may remember that I lent you some books on Bermuda before you went there in the 1990’s some 30 years ago!
I retired from Lovells in 2008 and I emigrated to Canada. In 2014, I became aware that the UK State Pension that I would start receiving in 2017 would be unindexed – that is to say, it would be “frozen” at the level first received. I also found out that it is indexed in the USA, our neighbours to the south, which seems discriminatory to me, so I joined the Canadian Alliance of British Pensioners (CABP), a campaign group here in Canada.
I found out that there were over 500,000 UK pensioners living in 106 countries where the UK State Pension is “frozen”, including 49 (out of 54) Commonwealth countries. In order to support a political campaign in the UK, and in conjunction with the British Pensions in Australia (BPIA), the International Consortium of British Pensioners (ICBP) was formed. These campaign groups have been working very closely with the All Party Parliamentary Group on Frozen British Pensions (APPG) in trying to bring this inequity to an end. Over the course of a 30-year retirement, the amount lost by a UK pensioner living in Canada could amount to £60,000 (CAD 100,000).
In 1989, Annette Carson relocated to work in Johannesburg, South Africa as a copywriter at Ogilvy & Mather, Grey Response, D’Arcy Direct, and Bates International. She soon discovered that her UK state pension was not going to be indexed when she was about to retire. In 2002 she agreed to be the “test case” and, backed by the campaign groups above she sued the British Government.
Her first court case was to appear in front of the Administration Court of the Queens Bench Division of the High Court. She lost the case but was given leave to appeal to the Supreme Court of Judicature Court of Appeal (Civil Division) – I am not even sure this Court exists anymore. She again lost to the British Government, and eventually, in 2005, what had now become the “Carson case” was heard by the highest Court in the land – the Appellate Committee of the House of Lords. The British Government prevailed 4-1 with the dissenting judge being Lord Carswell. His opinion was that you cannot index the UK State Pension in one country abroad without indexing it in other countries abroad where UK residents had chosen to retire.
Despite this setback, the campaign group moved on and formed a class action and took the case to the European Court of Human Rights (ECHR), Fourth Section. Again, the British Government prevailed. In 2009, the class action was appealed to the ECHR, Grand Chamber. They voted 11-6 in favour of the British Government, and the campaign groups had run out of Courts to appeal to. The Canadian government at that time helped us with some of the legal bills.
Since then, there have been several changes to discrimination law in the UK. In addition, there is also Brexit which may have changed the legal landscape regarding social security pension laws.
Since the Carson case, law research databases, such as Lexis/Nexis and Westlaw, have been developed that allows searching for precedents etc. much easier. If these had been available in 2002, it is questionable whether the case would have got beyond the Administration Court of the Queens Bench Division of the High Court.
Every year members of the campaign groups (BPiA, the CABP, and the ICBP) come to London to meet with the APPG and MPs who are receptive to the “frozen pensions” issue. The campaign groups are considering taking more legal action but want to work with a firm that would be willing to take on the British Government, and one that could empathise with the issue. Whilst these campaign groups have some funds, being not-for-profit organisations, money is always tight. Our PR company in the UK is Tendo Consulting, and a large chunk of our Membership Fees goes to paying them.
In late 2016 and the early part of 2017, I was Chair of the ICBP, and came over to the UK as part of the ICBP contingent and spoke with the APPG and many MPs. Unfortunately, I had to step down due to health issues, so, by a copy of this email, I would like to introduce you to John Duffy who stepped into the breach and has been Chair of the ICBP for 5 years now. John lives in Antigua, another country where the UK state pension is unindexed, and he is also Chair of the British Caribbean Pensioners Association (BCPA).
Every two years there is the Commonwealth Heads of Government Meeting (CHOGM). In 2019, the CHOGM bi-annual meeting was held in London. John came to London and, as Antigua’s representative tried to intercede in some of the meetings to highlight the Frozen Pensions issue. The British Government, being the largest country that attends CHOGM dictates the agenda and provides Foreign Aid funding to many of the countries that attend CHOGM, so nobody wants to upset the apple cart.
Currently, Canada and the UK are negotiating a new comprehensive Free Trade Agreement. Up until Brexit, Canada and the UK were bound by the Canada-European Union Comprehensive Economic and Trade Agreement (CETA). However, with Brexit, the UK falls outside of CETA, so the UK and Canada negotiated the Canada-UK Trade Continuity Agreement (CTA), which maintains the key parts of CETA, but was a sticking plaster until the new Free Trade Agreement could be negotiated. In our research we have found that since 2020, the UK has negotiated several trade agreements which have a Protocol on Social Security Coordination attached to them. These are set out in Appendix 1 below. What we are noticing is that whilst the Canadian government says the right things e.g., we will discuss this with our political peers in London – nothing ever changes. They have been saying this for over a quarter of a century. The Canadian Government does not want to rock the boat regarding the current Free Trade Agreement. The CABP has made representations to the Trade Parliamentary Standing Committee here in Canada, but they are all of one voice: a trade agreement is not the right place to have a social security section. Most recently, a letter from the Canadian High Commissioner in London, Hon. Ralph Goodale, PC, whilst on the face of it, is encouraging, however, the clear underlying message was – don’t rock the boat.
Given all this, our campaign groups appear to be heading to litigation if we cannot include a social security agreement (which would include indexing our UK State Pension) into the Canadian-UK Free Trade Agreement currently being negotiated.
I hope that it does not come to that, but, if it does, I would like the best firm in London to handle this. I believe that John Duffy and his team will be in London in late November. They intend talking to a few other firms and would like to have a Zoom meeting with each of them first to see if there is any synergy there, and then narrow the list down. Would it be possible for you to contact John by email at john.duffy@icbp.info, or please do get back to me with your response.
Thank you.
Yours sincerely
Nigel Nelson
Kelowna, British Columbia
Canada
Email: nigel@britishpensions.com
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