McCallion, Re Judicial Review [2007] NIQB 76 (25 October 2007)
Ref: MORF5961
Introduction
[1]
This is an application for judicial review of a decision by the Minister of State to refuse to exercise his discretion to award the applicant compensation pursuant to article 10 (2) of the Criminal Injuries (Compensation) (Northern Ireland) Order 1988. On 31 December 1998 Peter McCallion, the applicant’s husband, was involved in a fight with another man as a result of which he sustained injuries from which he died. At the time of his death he was supporting as children of the family 2 children aged 17 and 15 who were the children of his wife and a further child aged one of whom he was the father. On 23 February 1999 the applicant made an application for criminal injuries compensation on behalf of herself and the children. On 27 April 1999 her application was refused by virtue of article 5 (9) of the Order which provides that no compensation shall be paid in respect of a criminal injury to any person who has been a member of an unlawful association or who has been engaged in the commission, preparation or instigation of acts of terrorism. In 1978 Mr McCallion was convicted of the attempted murder of a soldier, the possession of a firearm and ammunition with intent to endanger life and also with intent to endanger property and belonging to an illegal organisation. He received terms of imprisonment of 18 years, 15 years, 12 years and 5 years to run concurrently.
[2] The applicant did not appeal the decision but applied to the Secretary Of State to exercise his discretion under article 10 (2) of the Order in order to seek compensation for herself and the children. Article 10 (2) provides-
“(2) Where, but for Article 5(9), compensation would be payable to any person, the Secretary of State may, if he considers it to be in the public interest to do so, pay to him such sum as does not exceed the amount of that compensation.”
A submission was prepared for the Minister of State by his officials. It was noted that in 1978 Mr McCallion was a member of PIRA in Londonderry and in August of that year was sent out to ambush an army patrol. The attack took place on 28 August when soldiers of the Queen’s Regiment were fired on in Racecourse Road in Londonderry. As a result of the attack one soldier was wounded and later was awarded compensation for the criminal injury received. The Minister was informed that there was no evidence that Mr McCallion had maintained a connection with any illegal organisation after his release from prison. It was suggested that there was nothing to show that he was endeavouring to give anything back into the community, outside his home and family. It was further suggested that the crimes of which he had been convicted were among the most serious, that his actions almost led to the death of a young soldier and were clearly pre-meditated. It was recommended that the Minister should conclude that it was not in the public interest that an award be made and that he should not exercise his discretion in favour of the applicant. The Minister accepted that recommendation.
The previous applications
[3] The applicant together with two ladies in a similar situation, Mrs McColgan and Mrs McNeill, launched judicial review proceedings in respect of the decision to refuse to exercise the discretion. The grounds on which the application for judicial review was made were summarised by Kerr J who heard the application-
1. The decision was procedurally unfair in that the applicants were not given information in advance of the Minister’s decision about the material on which he would base his decision; they were unaware of the Bloomfield criteria and were deprived of the opportunity of making representations. It was also claimed that they were not given reasons for the decision after it had been made.
2. The Minister failed to take into account a number of material factors. He was not provided with any analysis of the seriousness of the various offences of which the deceased had been convicted.
3. The Minister took into account a number of irrelevant considerations including, in the case of Mr McNeill, that he was a republican sympathiser.
4. The decision violated the applicants’ Convention rights, in particular, under Articles 2, 8 and 14.
5. It was contrary to the United Nations Convention on the Rights of the Child.
6. The decision was irrational”
He allowed the applications of Mrs McColgan and Mrs McNeill on the basis that they had not been given a fair opportunity to comment on material adverse to them but dismissed that of the applicant (re McCallion and others [2001] NI 407).
[4] When the applications of Mrs McColgan and Mrs McNeill were being reconsidered the applicant reapplied for the exercise of the discretion under article 10 (2) in her favour. By this stage the Criminal Injuries Compensation Scheme 2002 had come into operation and it was not thereafter a bar to compensation that the deceased had engaged in acts caught by article 5(9) of the Order. The Minister of State refused all three applications on 22 May 2003. On 27 May 2003 the applicant, Mrs McColgan and Mrs McNeill again launched judicial review proceedings. The grounds for this application were-
(1) ” The decision was procedurally unfair in the case of Mrs McNeill in that what had previously been described as peripheral fact became a primary ground of refusal without notice.
(2) The decision was procedurally unfair as the applicants were unable to make informed representations in the absence of particulars of those cases where the Secretary of State had exercised his discretion in favour of the applicants and in the absence of the information furnished by police concerning the deceased.
(3) The decision was contrary to the United Nations Convention on the Rights of the Child.
(4) The decisions were irrational by reason of an absence of consistency and equality of treatment.
(5) Reasons for the decision were not given.”
The application of Mrs McNeill succeeded before Weatherup J but he dismissed those of the applicant and Mrs McColgan (re McCallion and others No 2 [2004] NIQB 54).
- [5]
As is apparent from the grounds relied upon it was contended in each application that the decision not to exercise the discretion in favour of each of the applicants was a breach of article 2 (2) of the United Nations Convention on the Rights of the Child. Both Kerr J and Weatherup J concluded that they were not persuaded that there had been a breach of any of the precepts laid down by the Convention. Weatherup J expressly held that ratification of the Convention did not give rise to an enforceable legitimate expectation in domestic law and Kerr J implicitly reached the same conclusion.
[6] The Order made by Weatherup J was appealed to the Court of Appeal. The grounds of appeal were extensive but included the following contentions-
(a) The decision to refuse to exercise the discretion to award compensation amounted to a breach of article 2(2) of the UNCRC.
(b) The decision to ratify the UNCRC gave rise to a legitimate expectation in domestic law that it would not be breached.
(c) Reasons for the decisions were required and had not been given.
Nicholson LJ considered that there was an arguable case that the United Kingdom was in breach of article 2 (2) of the UNCRC under international law. He did not set out the basis upon which he reached that conclusion. Coghlin J, with whom Campbell LJ agreed, set out his views on this issue of paragraph 9 of this judgment-
“Neither of the learned judges provided any detailed reasons as to why they were not persuaded that there had been any breach of the relevant articles of the Convention and, in particular, Article 2.2. Mr McCloskey QC, both in his oral submissions and at paragraph 7 of his skeleton argument, sought to persuade the court that no breach had been established but I am afraid that I remained unconvinced. In the circumstances I propose to proceed on the assumption that to refuse to pay compensation to the applicants’ children because of the activities of their deceased fathers constituted a prima facie breach at least of the discrimination provision contained in Article 2(2) of the 1989 treaty.”
Each member of the Court of Appeal held that the ratification of the UNCRC did not give rise to any legitimate expectation in domestic law relying on ex parte Brind [1991] AC 696. Each held that reasons were required and not given in the cases of Mrs McColgan and Mrs McNeill but not in the case of Mrs McCallion. Accordingly the applicant’s appeal was dismissed but Mrs McColgan and Mrs McNeill were successful.
The present application
[7] The applicant renewed her application under article 10(2) by way of a further representation on behalf of all three ladies dated 11 November 2005. At paragraph 8 of that representation it was contended that the decision to refuse to award compensation in all three cases was a prime facie or arguable breach of article 2 (2) of the UNCRC relying on the judgments of Nicholson LJ and Coghlin J. For the respondent Mr McCloskey QC submits that this overstates the position of Coghlin J since he was merely making an assumption for the purpose of the hearing that there was at least a prime facie breach.
[8] In order to deal with this representation Mr Armour, Acting Chief Executive of the Compensation Agency, made a submission to the Minister dated 21 September 2006. In that submission he referred to the Court of Appeal judgments at paragraph 9-
“There is no question that the Court of Appeal found our explanation confusing. When it considered Mrs McNeill’s case and that of Mrs McColgan, it concluded that both applications fell within the averages we had provided and indicated that we had failed to explain why discretion was not being exercised in their cases. While Mrs McCallion’s application does not however fall within the averages, the court concluded that she had not been given an appropriate explanation as to why her application had been refused. Two other significant issues were raised by the court; namely the issue of the equality of opportunity under Section 75 of the NI Act and the Rights of the child in the context of article 2 (2) of the UN Convention on the Rights of the Child 1989. In reassessing the three cases, you will also wish to reflect carefully on these issues.”
It appears from this passage that Mr Armour did not appreciate that the Court of Appeal had upheld the Minister’s original determination in respect of Mrs McCallion. He then went on to deal specifically with article 2 (2) of the UNCRC at paragraph 14-
“During judicial review proceedings the applicant sought to argue that the UN Convention on the Rights of the Child are binding upon you and therefore compensation should be paid in all three cases. However, Mr Justice Coghlin concluded that the decision in “Brind 1991” (in respect of unincorporated treaties) suggested that there cannot be a substantive legitimate expectation that because the treaty has been ratified by the UK that the terms of the treaty will be binding on the UK Government. “
He recommended that the discretion to award compensation under article 10 (2) of the Order be exercised in favour of Mrs McColgan and Mrs McNeill but not in the case of Mrs McCallion. He appended a draft letter for signature by the Minister which noted that in Mrs McCallion’s case the severity of the sentences passed on her husband reflected the gravity of the crimes committed by him. The draft letter also included the following passage concerning the UNCRC-
” In addition the Minister considered the issue of public interest and his statutory equality obligations before reviewing the comments of Mr Justice Coghlin in relation to the you and Convention on the Rights of the Child 1989″
The Minister wrote to the applicant’s solicitor in the terms of the draft provided by Mr Armour.
[9] On 3 October 2006 the applicant’s solicitors wrote to Mr Armour asking in particular whether the Minister considered that the failure to award compensation in Mrs McCallion’s case would amount to a breach of article 2 (2) of the UNCRC. Mr Armour responded in a letter of 2 February 2007-
“In considering your client’s case, I can confirm that the Minister considered carefully the obligations of the State under the provisions of article 2 (2) of the UN1989 Convention.
To facilitate his deliberations, the Minister was provided with the submissions which you had submitted on behalf of your client. As you know these submissions contained reference to article 2 (2) and in doing so outlined the argument that failure to award compensation would result in a breach of the Convention.
In addition, the Minister reviewed the judgments delivered by both the High Court and the Court of Appeal in relation to your client’s case. In doing so, the Minister considered carefully the comments made by Mr Justice Coghlin in relation to the Convention. In particular of the Minister reflected on the decision in the case Brind v Secretary of State for the Home Department.
Having considered article 2 (2) in the context of the various submissions and judgments referred to above, the Minister concluded that article 2 (2) would not be breached by a decision not to exercise discretion in your client’s case.”
[10] On 1 May 2007 the applicant made a further application for leave to apply for judicial review in order to quash the Minister’s refusal to exercise his power to award compensation under article 10 (2) of the Order and to seek a declaration that the failure to exercise the power to award compensation pursuant to article 10 (2) of the Order is a breach of article 2 (2) of the UNCRC. On 14 June 2007 the applicant was granted leave to apply for judicial review on the following grounds-
“(a) In considering the application for compensation pursuant to article 10 (2) of the 1988 Order the Minister took article 2 (2) of the UNCRC into account;
(b) However, in reaching his decision on that application the Minister:-
(i) misdirected himself as to the correct interpretation of article 2 (2) of the UNCRC; and
(ii) erred in concluding that the failure to award compensation under article 10 (2) would not be a breach of article 2 (2) of the UNCRC for the following reasons:-
1. In refusing to award compensation for certain to article 10 (2) the Minister, on behalf of the State, failed to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians or family members” as required by article 2 (2);
2. The sole basis for the refusal of compensation was the status of the deceased as a person convicted of certain offences and/or his activities which led to the said convictions and/or his opinions and/or beliefs as expressed by the actions taken which led to the convictions;
3. But for the deceased’s convictions compensation would have been awarded. “
[11] On behalf of the respondent Mr Armour made an affidavit on 20 September 2007. At paragraph 3 he stated that he had been advised that the essence of the applicant’s case appeared to be that the Minister erred in law or otherwise misdirected himself in respect of article 2 (2) of the UNCRC. In order to refute that contention he referred to paragraph 14 of his submission to the Minister and the proposed letter of decision issued on 26 September 2006 signed by the Minister’s Private Secretary which corresponded with the terms of the draft prepared by him and appended to the submission. He then dealt specifically with matters relating to the UNCRC at paragraphs 6 to 11-
” 6. As appears from its text, the letter of decision states, inter alia:
‘In addition the Minister considered the issue of public interest and his statutory equality obligations before reviewing the comments of Mr Justice Coghlin in relation to the Convention on the Rights of the Child 1989’.
This was a reflection of paragraph 14 of my submission to the Minister. The submission had been prepared by me following due consideration of, inter alia, the three judgments delivered previously in the Court Of Appeal on 29 April 2005. I had also received and considered legal advice about these judgments (in respect whereof I do not waive privilege).
7. In my consideration of the judgment of Mr Justice Coghlin, I had noted the passages dealing with a Convention and, in particular, paragraph 15:
‘In the circumstances I am of the view that ratification of an international treaty by the executive government of the United Kingdom without more cannot, according to the law as it stands at present, give rise to a substantive legitimate expectation…
In my view the decision in Brind remains binding upon this chord with regard to unincorporated treaties.’
In compiling my submission to the Minister subsequently I sought to give effect to this conclusion, in summary form, in paragraph 14. I also sought to reflect this in the draft letter of decision prepared by me, appended to the submission, which subsequently became the actual decision letter.
8. As appears from the letter of decision, the Minister both agreed with my recommendation and approved the terms in which the decision should be expressed. He did so without any qualification. This conveyed to me then and continues to convey to me that he agreed with my submission in all respects, including paragraph 14 relating to the convention and the decision in Brind. Since the initiation of these proceedings and in the exercise of preparing this affidavit, I have confirmed with the Minister that this is the case.
9. The letter of decision was followed by a letter dated 3 October 2006 from the applicant’s solicitors and my later reply thereto, dated 2 February 2007. Between these two dates I sought and received legal advice, in respect whereof I do not waive privilege. Upon receipt of legal advice, I contacted the Minister’s private office to seek confirmation of the process the Minister had adopted in reaching his decision. I returned the papers to assist him in this exercise. Due to the Minister’s leave arrangements, I did not receive a response from his office until mid January. His Private Secretary advised me by telephone that the Minister confirmed that my understanding of this decision as set out in paragraph 8 above was correct.
10. I refer particularly to my letter dated 2 February 2007 to the applicant’s solicitors. I acknowledge that in this letter I did not make clear the basis upon which it was stated that ‘the Minister concluded that article 2 (2)[ of the Convention] would not be breached by a decision not to exercise discretion in your client’s case‘. As appears from my averments above, considered in conjunction with my submission to the Minister, the draft letter of decision and the actual letter of decision, the consistent approach throughout the entirety of the decision-making process was that, on the basis of the judgment of Coghlin J, a refusal to compensate the applicant would not infringe article 2 (2) of the Convention as it is an unincorporated treaty belonging exclusively to the domain of international law. This was the basis on which I wrote my letter dated 2 February 2007. I should add that when I wrote this letter, I did not have the benefit of legal advice or assistance regarding its contents.
11. The Minister has considered and has approved this affidavit, which I make on his behalf.”
The submissions of the parties
[12] For the applicant Mr MacDonald QC, who appeared with Ms Doherty, submitted that the evidence indicated that the Minister had examined the judgment of the Court of Appeal and in particular that of Coghlin J. In the letter of 26 September 2006 the Minister’s Private Secretary said that the Minister had considered carefully the findings of the Court of Appeal and reviewed the comments of Coghlin J in relation to the UNCRC. In his letter of 2 February 2007 Mr Armour said that the Minister reviewed the judgments delivered by both the High Court and the Court of Appeal. Mr McCloskey for the respondent was disposed to accept that the evidence suggested that the Minister did consider the judgments although he had no instructions on the point.
[13] The final paragraph of the extract from Mr Armour’s letter of 2 February 2007 set out above asserted that the Minister concluded that article 2 (2) of the UNCRC would not be breached by a decision not to exercise his discretion. The basis for that conclusion was set out at paragraph 10 of Mr Armour’s affidavit. In so far as it was based upon Coghlin J’s judgment Mr MacDonald submitted that it could not stand.
[14] For the respondent Mr McCloskey noted the reference to the Brind 1991 proposition at paragraph 14 of Mr Armour’s submission. There could be no criticism of that paragraph. It was clearly intended to deal with the case that the applicant made under article 2 (2) of the UNCRC. The letter of decision issued on 26 September 2006 was in the actual terms of the draft provided by Mr Armour. He submitted that this demonstrated that the basis of the decision on the UNCRC point was Brind and that this was confirmed by the letter of 2 February 2007. He accepted that the letter of 2 February 2007 was not clear on whether this was the only basis on which the UNCRC issue was considered but he submitted that a fair reading of all of the papers indicated that Brind was the only basis for the decision on article 2 (2) of the UNCRC. In particular he pointed to the difficulty that had arisen in getting clear instructions on the decision making process given the passage of time and the fact that the Minister had moved on to another Department.
[15] In any event Mr McCloskey submitted that there was no breach of article 2(2) by reason of the decision not to award compensation. He relied in particular on the observations of Lord Hoffmann in R(Carson) v Secretary of State [2005] UKHL 37
- . That was a case in which the applicant had retired in South Africa after a working life in Britain. Under the regulations she did not receive the annual cost of living increase to her pension and contended that this was discrimination on the ground of her residence which unlawfully interfered with her rights under article 14 of the ECHR to peaceful enjoyment of her possessions. Lord Hoffmann examined the meaning of discrimination at paragraphs 14 to 17-
“14 There is no doubt that Ms Carson is being treated differently from a pensioner who has the same contribution record but lives in the United Kingdom or a treaty country. But that is not enough to amount to discrimination. Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different. Indeed, it may be a breach of article 14 not to recognise the difference: see Thlimmenos v Greece (2001) 31 EHRR 411. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an “analogous situation”: see Van der Mussele v Belgium (1983) 6 EHRR 163, 179-180, para 46.
15 Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the Fourteenth Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1976) 427 US 307.
16 There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, e g that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (e g on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.
17 There may be borderline cases in which it is not easy to allocate the ground of discrimination to one category or the other and, as I have observed, there are shifts in the values of society on these matters. Ghaidan v Godin-Mendoza [2004] 2 AC 557recognised that discrimination on grounds of sexual orientation was now firmly in the first category. Discrimination on grounds of old age may be a contemporary example of a borderline case. But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy. In the present case, the answer seems to me to be clear.”
- [16]
The respondent submitted that in this case the comparison was between the applicant, whose husband had convictions for serious terrorist offences, and a widow whose husband did not have such convictions. These were unlike cases which the legislators were entitled to treat differently.
What did the Minister take into account?
[17] It is common case that in light of the judgment of the Court of Appeal it would have been open to the Minister to conclude that the ratification of the UNCRC did not give rise to any obligation as a matter of domestic law and did not need to be considered in the determination of this application for the exercise of the discretion. It is also agreed that although there was no domestic law obligation to consider the UNCRC it was open to the Minister to do so and all of the judges in the Court Of Appeal approved the following passage from the judgment of Carswell LCJ in re Adams [2001] NI 1-
” We do not consider that it is open to lower courts to adopt a different view from that expressed by the House of Lords in Ex parte Brind. It is important, however, to draw a clear distinction between the power to resort to international standards for guidance and the obligation to do so. In so far as Sedley J in R v Secretary of State for the Home Department, ex parte McQuillan [1995] 4 All ER 400, Kerr J in Re McMullan’s Application (1994, unreported) and the learned judge in the present case purported to hold that it is permissible to have regard to the standards contained in the several international documents, we would regard that as an unexceptionable statement of the law. “
[18] Whether the Minister took article 2 (2) of the UNCRC into account and if so in what manner is a question of fact to be decided on the evidence before the court (S v Airedale NHS Trust [2002] EWHC 1780 (Admin)
- ). The submission prepared for the Minister by Mr Armour did not explicitly consider the terms of article 2 (2) or what obligations were created by it. That would suggest that the submission was written with ex parte Brind in mind. It is clear, however, that the Minister went outside the submission as indeed he was entitled to do. The letter of 2 February 2007 indicates that he was provided with the representations prepared for the applicant. In the following paragraph of that letter Mr Armour says that the Minister reviewed the judgments delivered by both the High Court and the Court Of Appeal. Since neither the submission nor the representations on behalf of the applicant referred to the judgment in the High Court this strongly supports the view that the Minister considered the actual terms of the relevant judgments and such an interpretation is supported by the ordinary and natural meaning of the words used. On the balance of probabilities I consider that he did so.
- [19]
Mr Armour’s letter of 2 February 2007 contains four statements which are important in the context of this case. The first is that the Minister considered carefully the obligations of the State under the provisions of article 2 (2) of the UNCRC. It is common case that the Convention of itself creates no domestic law obligations but it does create obligations in international law. There was no examination at all in the submission prepared for the Minister of the obligations in international law which were created by the Convention. The statement, therefore, suggests firstly that the Minister took account of the international obligations created by the Convention and secondly that the Minister did not confine himself to the issues raised in the submission in the determination of this application.
[20] The second important statement is that the Minister considered the argument that the failure to award compensation would result in a breach of the Convention. It is important to note that the breach of the Convention referred to in the representations on behalf of the applicant and identified in the judgments of Nicholson LJ and Coghlin J were breaches of international obligation only. The argument made on behalf of the applicant to the Minister was that the decision was in breach of the State’s international obligation and that he should take that into account in his decision making.
[21] The next statement is that the Minister considered carefully the comments made by Coghlin J in relation to the Convention. Those comments essentially consisted of his being unconvinced by the argument that there was no breach of article 2 (2) (see paragraph 9 of his judgment) and his conclusion that ratification of the treaty without more did not give rise to a substantive legitimate expectation as a matter of domestic law (see paragraph 15 of his judgment). The latter proposition was derived from Brind.
[22] Finally the Minister concluded that article 2 (2) would not be breached by a decision not to exercise the discretion. Since the only argument advanced to the Minister was that article 2 (2) would be breached as a matter of international law it must follow that the Minister’s conclusion was that the decision not to exercise the discretion would not constitute a breach of the international obligation.
[23] Everyone is agreed that the Minister took into account and relied on Brind. The factual dispute between the parties is whether in the course of accepting that the ratification of the Convention gave rise to no substantive legitimate expectation as a matter of domestic law the Minister considered the nature of the obligation arising as a matter of international law and whether he concluded that the decision not to exercise the discretion did not breach that international obligation. On the basis of the evidence set out above I conclude on the balance of probabilities that he did exactly that.
The reasoning on article 2(2) of the UNCRC
[24] This conclusion is reinforced when one looks at the affidavit of Mr Armour. Paragraph 8 is of little assistance since the issue is whether the Minister properly understood Brind or went beyond it. Paragraph 10, on the other hand, puts forward as the reason for the conclusion reached by the Minister, that a refusal to compensate the applicant would not infringe article 2 (2) of the Convention, that it is an unincorporated treaty belonging exclusively to the domain of international law. It is acknowledged by the respondent that international law obligations flow from ratification and are not affected by incorporation into domestic law so that the reasoning cannot be supported. Mr McCloskey suggested that the reasoning is so defective that I should conclude that the evidence pointing to the consideration of the international law obligation should be rejected and the statement interpreted so as to mean that there was no consideration of that issue. I do not consider that it is open to me on any fair reading of the materials to accept that submission. I cannot explain why the Minister reached this decision but I note a possible ambiguity in paragraph 14 of Mr Armour’s submission. If one reads onto paragraph 14 of the submission the additional words “as a matter of domestic or international law” the explanation offered by the Minister becomes explicable. Although the addition of the underlined words would, of course, introduce an error into the submission it appears to me to be a possible explanation for the error.
Breach of article 2(2)
[25] Having concluded, as I have, that the Minister fell into error in his reasoning for determining that article 2 (2) of the Convention was not breached Mr MacDonald submits that this conclusion is sufficient to justify quashing the decision. Mr McCloskey, however, says that even if the reasoning is wrong the determination of the Minister in respect of article 2 (2) is still correct. He submits that article 2 (2) properly understood is a qualified obligation, he relies upon the approach to discrimination adopted by Lord Hoffmann above and he contends that there is ample objective justification in the public interest for the decision.
[26] Article 2 (2) of the UNCRC creates an international obligation which the United Kingdom accepted on ratification of the Convention. The starting point to a determination of whether there has been a breach is the Convention itself-
“ Article 2
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child
within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her
parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all
forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or
beliefs of the child’s parents, legal guardians, or family members.”
As with any international instrument it is necessary to establish the true autonomous and international meaning of the obligation in accordance with the objectives of the Convention (see Lord Steyn in ex parte Adan [2001] 2 AC 477 at 516 and R(Mullen) v Secretary of State for the Home Department[2004] UKHL 18 at paragraph 36). I accept that the reference to “all appropriate means” introduces a qualification to the prohibition on discrimination on the basis of the activities of the child’s parents. The respondent contends that the difference in treatment of the child is justified by the comparison between the activities of parents who have or have not committed serious criminal offences. That approach may be appropriate in a domestic law discrimination case where it is necessary to identify the pool of comparators but in an international instrument focused on differential treatment of children I consider that a broader range of inquiry is necessary. The aim is to establish whether the conduct complained of pays proper respect to the objective of the Convention. Why is it appropriate to provide compensation to a child whose father has committed serious criminal offences if the father died in 2003 but not to a child in the same circumstances if the father died in 2001? What is the justification which makes it appropriate to treat the class of children whose fathers have committed serious criminal offences differently depending on whether the father died before or after 2002? I consider that these issues give rise to an arguable case of breach of article 2 (2) on the papers. I do not consider that the reasons advanced by the respondent are sufficient to lead to the conclusion that the decision to refuse to exercise the discretion is not a breach of article 2 (2). It seems to me, however, that the issue of breach of this article emerged in such a limited and unsatisfactory way in the development of this case that I should not go further than to say that on the papers and arguments before me the decision to refuse compensation gives rise to an arguable breach of the Convention.
- [27]
On the basis of the evidence adduced before me I conclude that the Minister in making his decision to refuse compensation to the applicant took into account the international obligation imposed by article 2 (2) of the UNCRC and that his reasoning for concluding that there was no breach of the Convention cannot be accepted. I further consider that there is an arguable case that the decision to refuse compensation is a breach of the Convention and that the arguments advanced on behalf of the respondent are insufficient to establish that there was no such breach. Accordingly I consider that the decision must be quashed.
