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PETITION AND RECLAIMING MOTINO BY MA AGAINST A DECISION OF THE CRIMINAL INJURIES COMPENSATION BOARD


Submitted: 14 July 2017

Web Blue CoS

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 46

P243/15

Lord Justice Clerk

Lord Brodie

Lord Turnbull

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the Petition and Reclaiming Motion

by

MA

Petitioner and Reclaimer

against

A DECISION OF THE CRIMINAL INJURIES COMPENSATION BOARD

Respondents

Petitioner and Reclaimer:  J Mitchell, QC, Irvine; Drummond Miller

Respondents:  Johnston, QC, Webster; Office of the Advocate General for Scotland

14 July 2017

Introduction

[1]        The reclaimer sought compensation from the respondents in respect of criminal injuries inflicted upon her by her mother in 1968 and 1973.  She was 3 months old at the time of the first incident, and 5 years old at the time of the second.  On both occasions, the reclaimer’s mother was prosecuted for attempted murder and convicted of assault.  In due course (November 2012) the reclaimer lodged a claim for compensation, which fell to be determined by the respondents in accordance with the Criminal Injuries Compensation Scheme 2008, applicable to claims received on or after 3 November 2008.  Paragraph 7 of the Scheme provided:

No compensation will be paid under this Scheme in the following circumstances:

 

(b)        where the criminal injury was sustained before 1 October 1979 and the victim
and the assailant were living together at the same time as members of the same family” (“the same roof rule”). 

 

On the basis of that rule the claim was refused by the respondent by letter dated 10 March 2014.

Background to paragraph 7(b)
[2]        The history of para 7(b) is set out in detail by the Lord Ordinary.  The exclusion reflected therein has existed since the first ex gratia Criminal Injuries Compensation Scheme in 1964.  All schemes since 1995 have had a statutory basis requiring the scheme to be laid before Parliament and approved by resolution of each house.  In the report to the Secretary of State for the Home Department of a Working Party on Compensation for Victims of Crimes of Violence in 1960 (Cmnd 1406) the issue of relationship between the offender and the victim was addressed.  The report stated:

“38. … There are many “domestic” crimes, including assaults on wives or members of a family or household, for which the payment of compensation might be thought inappropriate.”

 

[3]        It was doubted whether it would be practicable to establish a boundary in such cases which would not give rise to anomalies and difficulties.  However, in the subsequent White Paper setting out proposed arrangements for a scheme, (Compensation for Victims of Crimes of Violence (Cmnd. 2323)) it was thought best to start with a flexible scheme which could be altered in the light of experience.  At paragraph 17 it is stated:

“Offences committed against a member of the offender’s household living with him at the time will be excluded altogether, in view of the difficulty in establishing the facts and ensuring that the compensation does not benefit the offender.”

 

[4]        That rationale for the inclusion of what became known as the “same roof rule” persisted until, in its Eighth Report dated 23 September 1972 (Cmnd 5127), the Board recommended that the same roof rule should be reconsidered when the scheme was reviewed.   The two explanations for the rule were criticised.   It was pointed out that where there has been a criminal trial the facts would often be established beyond doubt.  Where no criminal proceedings had followed the Board would scrutinise the application with particular care, bearing in mind the possibility of collusion.  No real risk of benefit to the offender would arise when a long prison sentence had been imposed, where parties had been divorced, or where it was plain they would never again live together.  Otherwise, powers available under the scheme allowed the making of special arrangements for administration of the award so that the offender did not benefit.  Only one application made by a child injured by a member of the family had been made, and had been refused on the same roof rule.  The Board could not tell how many had simply failed to apply because of the exclusion.  Nevertheless, in the Board’s view, the exclusion of children assaulted by their parents or by a man living with their mother, seemed unjustified.   

[5]        Following review by an interdepartmental working party in 1978, (Review of the Criminal Injuries Compensation Scheme: Report of an Interdepartmental Working Party, (1978), HMSO) that recommendation was given effect to prospectively.  For offences committed on or after 1 October 1979, an award could be made where the assailant and applicant lived together so long as the assailant had been prosecuted in connection with the offence or there were good reasons why a prosecution had not been brought.  For offences committed before that date, the original rule was retained.

The proceedings
[6]        The reclaimer lodged a petition for judicial review in which she attacked the lawfulness both of the respondent’s decision to refuse her claim and paragraph 7(b) of the 2008 Scheme, on the basis that both the decision and that paragraph of the scheme were discriminatory in a manner contrary to ECHR Article 14, read with A1P1.  She sought declarators that paragraph 7(b) and the decision were unlawful and reduction both of the decision and the paragraph. 

[7]        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.”

 

A1P1 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”. 

 

[8]        There were effectively three issues before the Lord Ordinary:

1          Whether a claim for criminal injuries compensation could be a “possession”
for the purpose of A1P1;

2          Whether there was discrimination based on “other status” within the
meaning of Article 14; and

3          If the answers to these question were in the affirmative, whether the
respondent had demonstrated that any such discrimination was justified. 

[9]        The Lord Ordinary answered all three questions in the affirmative.  The reclaimer challenges the conclusion that the difference in treatment was justified.  The respondent challenges the conclusion that the compensation claim came within the ambit of A1PI.  The issue of “other status” is no longer in issue between the parties.  

 

The Lord Ordinary’s opinion

[10]      The Lord Ordinary considered, on the basis of Stec and others v UK 2005 41 EHRR SE 18, and analysis of that case in subsequent authorities, that the claim came within the ambit of A1P1.  Although obiter remarks to the contrary were made by an extra division in DJS v The Criminal Injuries Compensation Appeal Panel 2007 SC 748, that court did not have the benefit of the analysis of Stec which had subsequently been made in several cases by the UK Supreme Court, in particular in R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311, paras 23 to 34 and Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250.  The argument advanced for the respondent in RJM, largely that advanced in the present case was rejected on the basis of Stec.  In Stec the ECtHR had stated:

“54.      In cases such as the present concerning a complaint under Art. 14 in conjunction with Art. 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question.   Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with Art. 14.”

 

[11]      The Lord Ordinary considered that this required him to look beyond the same roof rule, and ask whether the reclaimer would otherwise have had an enforceable claim.  He rejected an argument that Stec was to be limited to cases within the framework of social security:  it had been applied on other circumstances, such as in immigration law (Hode and Abdi v UK (2013) 56 EHRR 27 and criminal injuries compensation (JT v First Tier Tribunal and Anr [2015] UKUT 0478 (ACC). 

[12]      Having determined that the reclaimer had relevant status for the purpose of Article 14, the Lord Ordinary then turned to the question of justification.  He noted that the complaint was of discrimination, not on the basis of one of the “core” grounds of Article 14, but in the context of an award of compensation provided by the state as a matter of policy to victims of crime.  The original justification on the basis of difficulties of proof and a fear that the offenders might benefit was rational and understandable.  The change in 1979 was made prospective because of the difficulty in estimating the cost of wholesale abolition.  The rule discriminates in imposing a “bright line” but it does so in a way which extends the reach of the scheme, and assists in making the scheme sustainable.  The government was entitled to take a cautious approach and to impose a cut-off date to mitigate the effects of change, a policy decision in an area of public interest deserving of considerable deference.  Retention of the rule in this limited form was a proportionate response to the criticisms made of the rule and one within the legitimate exercise of the discretion accorded to Parliament.

[13]      Given the nature of the issues with which this reclaiming motion is concerned, it is convenient to start with the cross-appeal.

 

The cross-appeal

Submissions for the respondent

[14]      Article 14 having no independent existence, it could only be relied on if the reclaimer’s claim came within the ambit of A1P1, which was in any case primarily concerned with the formal appropriation of assets for a public purpose:  see M v Secretary of State for Work and Pensions [2006] 2 AC 91, paras 10, 13, 14, 89. 

[15]      The normal principle applicable was that set out in Kopecky v Slovakia (2005) 41 EHRR 43 at paras 49-51, namely that a claim can only be described as a possession if there is at least a “legitimate expectation” of securing it.  That will only arise where the claim has a sufficient basis in national law, under statute or established case law.  Roche v United Kingdom (2006) 42 EHRR 30, para 129 confirmed that a claim constituted a possession only where it had a sufficient basis in national law.  There was no basis in national law for the claim in the present case, it being precluded by the scheme.

[16]      The Kopecky principle continues to apply as was specifically affirmed in Stec, the terms of which should be read as limited to cases relating to welfare benefits.  That can be seen, first, by the context in which the case of Stec was decided, namely that (para 49):

“The Court’s approach to Art. 1 of Protocol No. 1 should reflect the reality of the way in which welfare provision is currently organised within the Member States of the Council of Europe.”

 

The concern was to jettison what was seen as an inappropriate distinction which had sometimes been made between contributory and non-contributory benefits. 

[17]      That Stec constituted, in the case of welfare benefits, an exception to the normal Kopecky approach was noted by the House of Lords in R (RJM) in the speech of Lord Neuberger (para 31)

“I recognise that the admissibility decision in Stec represents a departure from the principle normally applied to claims which rely on A1P1.”

 

However, the Court in Stec confirmed that the principles summarised in Kopecky v Slovakia applied generally to cases under A1P1, and expressly affirmed that the Article does not create a right to acquire property. At para 53 the court stated:  

“It must, nonetheless, be emphasised that the principles, most recently summarised in Kopecky v Slovakia [GC]: (2005) 41 EHRR 43 at [35] which apply generally in cases under Art.1 of Protocol No.1 , are equally relevant when it comes to welfare benefits. In particular, the Article does not create a right to acquire property.”

 

Accordingly, the observations in Stec fall to be restricted to cases of the kind which were before the court, namely those relating to welfare benefits.

[18]      The policy justification for creating an exception in cases relating to welfare benefits, but restricting the extension only to such cases can be seen in para 50 of the decision in Stec:

“In the modern, democratic state, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid—subject to the fulfilment of the conditions of eligibility—as of right.  Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Art.1 of Protocol No.1 to be applicable.”

 

[19]      The concept of possession under A1P1 was extended in Stec in relation to welfare benefits but not otherwise.  It was implicitly recognised in R (RJM), itself a welfare benefits case, that Stec was so restricted.  In para 32 of his speech, Lord Neuberger noted that:

“It may well be that the conclusion in Stec was founded more on broad policy than strict logic, but it is by no means exceptional, for the ECtHR to found a decision on such a basis.  It is not as if there is any subsequent decision of the ECtHR which casts doubt on the reasoning in Stec.  The decision in von Maltzan 42 EHRR SE 92 came later, but it did not concern social welfare payments.  Stec was expressly distinguished (and therefore not doubted) in Associazione Nazionale Reduci dalla Prigionia dall'Internamento e dalla Guerra di Liberazione v Germany (2007) 46 EHRR SE 143, para 77, on the grounds that what was involved in that case was “a one-off payment granted as compensation for events which occurred even before the Convention came into force” which was therefore “outside the framework of social security legislation” and could not be “likened to the payments in Stec.

[20]      That conventional approach was followed by the ECtHR in Associazione Nazionale Reduci Dalla Prigionia Dall’Internamento E Dala Guerra Di Liberazione v Germany (2008) 46 EHRR SE 11 (“the Italian POW case”) at para 77.  The Lord Ordinary erred in his understanding of that case when distinguishing it.  He failed to recognise the distinction between the ECtHR’s rejection of the claim made that the German Foundation law deprived the claimants of preexisting claims (paras 6572); and the claim that the applicants should nevertheless succeed since the enactment of that Law was itself discriminatory (paras 7378).  In respect of the latter, the court distinguished Stec (para 77) on the basis that it dealt with payments within the framework of social security, whereas the subject of the POW case was outwith that framework and could not be likened thereto.  The POW case was one relating to compensation, in that case for historic wrongs, and the court held that the Stec principle did not apply.  The ECtHR’s narrow application of Stec at para 77 accords with adherence to the general principles in other cases, as set out in Kopecky.  In neither Hode nor JT, which the Lord Ordinary relied upon for an expansive approach, was the scope of Stec an issue addressed under reference to Kopecky.  The principle was applied in Hode and Abdi but that was an Article 8 case.  Mathieson was a welfare case which proceeded on a concession, so again the court did not engage with the scope of Stec outside welfare provision. 

[21]      The appellant relied on the case of Fabris v France (2013) 57 EHRR 19 as a case where the Stec principle was applied in the field of inheritance law.  That is so; however there was no analysis explaining why the Stec principle should be transported from the field of social welfare to inheritance law.

[22]      The 2008 Scheme is not a welfare provision.  It is not part of the social security scheme in the United Kingdom.  It has distinct statutory provision with distinct Ministerial responsibility.  It does not provide for regular payments of benefit or pension, but a oneoff compensation payment, which may include provision for financial losses.  Payments may be reduced in the light of social security benefits paid.  The Lord Ordinary failed to distinguish between social security benefit schemes and compensation schemes, both generally and specifically in relation to the 2008 Scheme.

 

Submissions for the reclaimer
[23]      The nub of the reclaimer’s argument was as follows:  a claim for criminal injuries in general had a foundation in national law, i.e. the scheme;  a claim with such a foundation could generally constitute an asset for the purpose of A1P1;  the only reason that the reclaimer was excluded was the discriminatory effect of rule 7(b);  that being so the rule must be disregarded.  A claim pre-dating 1964 would, on the basis of the POW case, be defeated as never having had any foundation.  However, a failure to meet a statutory condition which was itself discriminatory could not preclude an interest arising under A1P1. 

[24]      A broad definition has been applied to consideration of what falls within the “ambit” of a substantive convention provision: A v Secretary of State [2016] 1 WLR 331 paras 31 and 46.  For the purposes of Article 14 it is not necessary for the substantive right to be made out.  The concept of “possession” is exceptionally broad: it will be sufficient for the purposes of A1P1 that the applicant demonstrates an interest with an economic value, the ultimate issue being “whether the circumstances of the case, considered as a whole, confer on the individual a substantive interest” protected by that provision: Broniowski v Poland (2005) 40 EHRR 21.  Whilst the state may not be required to operate a system for the payment of criminal injuries compensation to persons injured within its jurisdiction, if it chooses to do so, the scheme must operate compatibly with Article 14.  Criminal injury compensation is a benefit paid by the state; it is a state benefit and must be provided without discrimination.

[25]      A claim which has not yet been determined may constitute a possession if (i) there is an ultimate entitlement to it under national law; or (ii) there is a legitimate expectation of receiving it ultimately or (iii) the reason why the claimant has not been awarded it or cannot receive it under national law is a discriminatory ground under Article 14.  Thus it includes claims which are visibly debarred by a condition of national law if that condition is discriminatory.  The observations by Lord Neuberger in R (RJM) at paras 23-34 are not consistent with the respondent’s argument.  The House of Lords was invited not to follow the reasoning in Stec but Lord Neuberger noted (para 31) that Stec:

“… was a carefully considered decision in which the relevant authorities and principles were fully canvassed and where the Grand Chamber of the ECHtR came to a clear conclusion which was expressly intended to be generally applied by national courts.”

 

[26]      Welfare benefits may be the area of law where the battle took place, but there was no basis not generally to apply the principle in other areas of law.  The argument in R (RJM) was that if A1P1 were inapplicable because an individual had no “possession”, then Article 14 would equally be inapplicable, and the provision depriving the claim of the character of a possession could not be impugned on the basis of discrimination.  That was rejected, and there was no basis for limiting the rationale of that rejection to welfare benefits.

[27]      In C v Home Office & Criminal Injuries Compensation Authority [2004] EWCA Civ 234, the Court of Appeal accepted that, where a claim for criminal injuries compensation was well-founded, the eventual award would constitute a “possession” for A1P1 purposes, even before it had been quantified:  the reclaimer was excluded from that only on the basis of a discriminatory measure.  The Court in DJS did not have the benefit of the post-Stec line of authorities, thus failed to appreciate that a claim which had no such basis simply because national law was discriminatory was in the same position as a claim unaffected by the discriminatory measure.  The subject of Fabris (inheritance) where Stec was unequivocally applied, could not be further from that of welfare benefits.  The principle can be seen to have been applied in numerous difference spheres.

 

The reclaiming motion
[28]      There was a certain degree of agreement between the parties as to the issues relevant to justification.  It was agreed that a “reasonable and objective” justification had to be made out;  and that this would require that the difference in treatment be shown to pursue a legitimate aim, and that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.  An ex post facto justification may be good enough, although greater scrutiny may require to be applied to a justification which was not considered at the time of the measure in question.  It was appropriate to apply the “manifestly without foundation” test.  In reviewing decisions made relating to the distribution of finite resources in areas of socio-economic policy, the court should exercise restraint, recognising that appropriate weight must be given to the views of the legislature on the policy decision in question and the reasons therefore.  Greater latitude may be applied if the status upon which the discrimination proceeded was not an immutable one.  In advancing these submissions parties drew on in re Brewster [2017] 1 WLR 519 and in re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] AC 106.

 

Submissions for reclaimer
[29]      Counsel submitted that the status upon which the discrimination proceeded was an immutable one, hence the latitude available to the legislature was diminished.  The only justification which had been applied prior to 1979 related to the two-fold considerations of potential collusion and the possibility of benefit to perpetrators.  There was some reference to cost in 1979, but rather on the basis that it was expected to be minimal.  However in 2012, when an equality impact assessment was carried out in relation to the scheme then introduced;  it was clearly considered that the rules on co-operation and the requirement that the victim and assailant should no longer live together would be sufficient to ensure that offenders did not benefit from an award and, if possible, were brought to justice.  However 2012 was the first time when the issue of cost was advanced as an explanation for continuing to retain the rule for pre-1979 claims, in the following terms:-

“We have concluded that it is justified to retain that rule on the basis that one of the aims of the reform of the Scheme is to reduce the burden on the tax payer and make the Scheme sustainable in the long term.  On that basis, and taking into account the policy reforms to reduce elements of compensation in the Scheme in the future, and restrict its scope, we will not change this rule as it would have the effect of increasing the Scheme’s potential liability in an uncertain way in respect of injuries sustained between 1964 and 1979, more than 30 years ago.  To open the Scheme up in this way would also involve a significant administrative burden for CICA and can present difficulties for claims officers in establishing the link between the offences and the injuries.”

 

[30]      Counsel submitted that (a) this was ex post facto reasoning;  (b) it was speculative;  (c) it was based entirely upon cost.  Cost alone was not a sufficient basis to justify discrimination.  In 1979 it was estimated that the cost of abolishing the rule was £1.6 million;  there had been no attempt to estimate cost since.  There had been no proper exercise of proportionality, balancing the interests of the state and the citizens.  It should be possible to estimate the level of claims of this kind which came in after 1979 and project the cost of abolishing the rule.

 

Submissions for the respondent
[31]      Counsel for the respondent disputed that the status in question was immutable;  the differential arose not from being members of the same family which was immutable but from living under the same room which was not immutable.  In in re Brewster it was a consideration that no thought had been given to possible difficulties with administration.  In the present case no such criticism could be made.  The context is one where considerable latitude required to be given to the legislature.

[32]      The reclaimer’s argument that budgetary considerations could not themselves justify discrimination stems from an employment case (O’Brien v Ministry of Justice [2012] ICR 955).  One could not readily assume that such considerations automatically carried over to any other status for the purposes of Article 14, particularly when no issue of direct discrimination on the ground of sex arose.  In relation to the justification advanced, counsel submitted (a) it was not correct to describe it as limited to budgetary considerations.  Other factors were the long-term sustainability of the scheme;  that removal of the rule would have the effect of increasing liability in an uncertain way for injuries sustained between 1964 and 1979;  that it would involve significant administrative burden;  and could present difficulties for claims officers in establishing a link between the offence and the injuries, particularly given the historical nature of the claims;  (b) the justification was not purely ex post facto, although even if it were that would not prevent it from constituting an objective justification.  In the 1978 report it was observed that:-

“… it will be clear that the practical and financial consequences are difficult to estimate.  We are sure that some moves should be made to extend the Scheme to cover at least the very seriously injured victims of such violence (in particular those who have been maimed or suffered serious injury of a permanent nature), but in view of the lack of information about the size of the problem, or the extent of the financial or staff resources that would be necessary to deal with it, we recommend that any extension of the Scheme in this direction should in the first place be for a limited period and experimental.”

 

Accordingly, amongst the considerations were the financial and staff resources and the lack of information as to the size of the problem.  A key consideration is that the scheme had to be sustainable and a key component to sustainability was to avoid exposure to claims of unknown dimensions.  Insofar as the justification was ex post facto it was based on sound and substantial reasons.  The restriction of the scheme constituted a prudent decision about allocation of financial and other resources, to shield the scheme from liabilities of uncertain dimensions and promote its sustainability.  Such a decision was within the range of reasons open to the decision-maker to advance.  There may be room for a difference of view but the justifications were squarely within the bounds of what was justifiable in applying the correct test and the Court should be slow to depart from the view of the decision-maker.

 

Analysis

The Cross-Appeal

[33]      The critical question, which is essentially determinative of the cross-appeal, is whether the principle applied in Stec is restricted to cases relating to welfare benefits claims or requires to be applied more widely.  Clearly, the context of Stec was one of welfare benefits, and the resolution of previous jurisprudence whereby the contributory nature of certain benefits had generally caused them to be considered an asset, whereas non-contributory benefits had been more inconsistently treated, sometimes seen as an asset, sometimes not.  We recognise that there could be a valid reason for carving out a difference of treatment for all welfare benefits, on the basis that their purpose is substantially to prevent individuals from falling into destitution.  This is perhaps partially reflected in para 50 of Stec which refers to the need for certainty and security in a manner in which such payments are allocated.  We also recognise that R (RJM) in which Stec was followed by the House of Lords, was itself a welfare benefit case.  The fact that in R (RJM) the Court noted that the POW case was distinguished from Stec on the basis of being outwith the welfare field, and that von Maltzan (another case arising from the consequences of the Second World War, and in which Stec was not mentioned) came after Stec, may reflect a perception that Stec was limited to such cases:  on the other hand it may simply reflect a cautious and incremental approach by the House of Lords, proceeding on the basis that at the very least the case did apply to welfare benefits and thus to the case under consideration.  Nevertheless, it should be noted that in R (RJM) it was observed that in Stec the Grand Chamber came to a clear conclusion “which was expressly intended to be generally applied by national courts.”  Cases such as von Maltzan and the POW case can be distinguished on the basis that they equiparate more to the position of someone who sought to claim criminal injuries compensation for a period prior to 1964, when there was no scheme in place at all.  There being no legitimate entitlement which could create an A1P1 asset, there could be no question of Article 14 applying.  The POW case was not a decision of the Grand Chamber.  It is not entirely clear why it was felt necessary to proceed to distinguish Stec, since the position adopted by the parties on the relevant issue, is briefly, if at all, stated.  However, it may have been in answer to a submission that since the compensation for forced labour came out of general taxation, as did welfare benefits, that was sufficient to engage A1P1. 

[34]      In any event, even if it be the case that the initial response to the decision in Stec was a perception that it was confined to welfare benefits, in our view (a) such a restriction does not seem to follow from the terms of Stec itself;  and (b) subsequent cases clearly suggest that the applicability of the decision is wider than that.  In re Brewster seems to have proceeded on an assumption that Stec applied to pension provision.  The position is most clearly seen in Hode and Abdi, a Grand Chamber case in which the reasoning of Stec was directly applied to a case concerning the rights of immigrants.  It cannot be said that the Court was either unaware of Stec, or ignorant of its reach:  both Judge Bratza and Judge Garlicki sat in Hode and Abdi, and both had been party to the substantive decision in Stec.  At para 43 of Hode and Abdi the Court said:-

“The Court accepts that there was no obligation on a state under art. 8 of the Convention to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.  However, with regard to social benefits, the Court has previously held that if a state did decide to enact legislation providing for the payment as of right of a welfare benefit or pension – whether conditional or not on the prior payment of contributions – that legislation had to be regarded as generating a proprietary interest falling within the ambit of Art. 1 of Protocol No. 1 for persons satisfying its requirements.  Likewise, the Court considers that if the domestic legislation in the United Kingdom confers a right to be joined by spouses on certain categories of immigrant, it must do so in a manner which is compliant with art. 14 of the Convention.”

 

The word “likewise” indicates a direct analogy with the reasoning in Stec, making it clear that Stec applied beyond the confines of welfare benefits.

[35]      Similarly in Fabris, the case which related to alleged discriminatory exclusion from inheritance rights, the Court applied the test “whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right enforceable under domestic law, in respect of the asset in question” (the “but for” test).  This was done specifically under reference to Stec (footnote 36).

[36]      In Stec the Government had argued (para 33) that the Convention and A1P1 were concerned with civil and political, rather than social and economic rights, and that to include non-contributory benefits within the ambit of A1P1 would illegitimately extend the reach of the Convention, and conflict with the purpose and effect of the social charter.  However, the Court explained (para 51) that:-

“Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature.  The mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation;  there is no water-tight division separating that sphere from the field covered by the Convention…”

 

[37]      In our view, it is not the case that Stec, or its extension to situations other than welfare benefits, is at odds with prior cases such as Kopecky or Broniowski.  These cases established or confirmed the principle that a claim may constitute an asset for the purposes of A1P1, but only where it had a sufficient basis in national law.  In these cases, no question of discrimination arose, and one cannot conclude from them that an individual’s claim would be excluded from the ambit of A1P1 if the only basis for his exclusion from a claim, otherwise available under domestic law to others similarly situated, was a discriminatory one.  Kopecky and similar cases are silent on that question, for the answer to which one must turn to Stec and subsequent authorities.  The answer is to be found in para 54 of Stec which refers to “cases, such as the present, concerning a complaint under Art. 14 in conjunction with Art. 1 of Protocol 1.”  The Court noted that in such circumstances, where the reason that an individual has been excluded from a benefit is discriminatory, the “but for” test will be applied.  That reading of paragraph 54 of Stec is confirmed in Fabris in para 52 where the court stated, under reference to Stec that

“In cases, such as the present, concerning a complaint under art.14 in conjunction with art. 1 of Protocol No. 1 that the applicant has been denied all or part of a particular asset on a discriminatory ground covered by Art. 14, the relevant test is whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right enforceable under domestic law, in respect of the asset in question.”

 

[38]      For these reasons we are satisfied that the Lord Ordinary was correct in his approach and that the cross-appeal must fail.

Reclaiming motion
[39]      The essential question is whether objective and reasonable justification for interference with the appellant’s right to property has been made out, applying the manifestly without reasonable foundation test.  We accept the submission of the respondent that the status in question was not an immutable one:  the differential arose not from being members of the same family, but from living in the same household.  The policy decision in question falls squarely within the field of socio-economic policy and the allocation of finite resources.  For these reasons, we consider that it is appropriate to accord a wide margin of discretionary judgment to the legislature in respect of the decision in question.

[40]      Counsel for the reclaimer was not correct in his submission that the considerations of cost relied upon by the respondent represented ex post facto reasoning.  It is clear from the 1978 report that the long-term sustainability of the scheme was a central feature in the recommendation to abolish the rule without retrospective effect.  Even reasons advanced retrospectively may provide justification, as counsel acknowledged.  As was noted in In Re Brewster, supra, per Lord Kerr at para. 52: “Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide”.

[41]      Furthermore, it was not correct to describe the justification advanced by the respondent as limited to budgetary considerations.  A central consideration was to ensure the long-term sustainability of the scheme, and there was clearly expressed concern that wholesale abolition of the rule would expose the scheme to a highly uncertain degree to compensation for injuries sustained between 1964 and 1969.  It was clear that the policy decision also encompassed concerns that wholesale abolition would increase the administrative burden and could give rise to difficulties in establishing causation between the offence and the injuries, particularly given the historical nature of the claims.  This was a reasonable foundation for a policy decision which limited the extent of the abolition of the rule.

[42]      The reclaimer argued that costs considerations could never in themselves provide a justification, that a “cost plus” justification was always required, and so was an estimate of the likely expenditure.  We reject these arguments, acknowledging only that in certain circumstances a justification based only on budgetary constraints may be more difficult to make out.  As the respondent pointed out, the reclaimer’s argument in this respect stemmed from O’Brien (supra), an employment case.  There are certain factors in such cases which set them apart.  In the first place, they usually concern discrimination on one of the core grounds, which the present case does not.  In the second place, in employment cases, it should be possible for employers (knowing the number of employees of either sex and what they are paid) to offer at least a rough estimate of cost.  However, in a situation such as the present, estimation of the exposure which might arise from extension of historical claims is very much more difficult.

[43]      In the circumstances, we are satisfied that a reasonable and objective justification has been made out. The discriminatory provision pursued a legitimate aim, which was to ensure long term sustainability of the scheme.  The means employed was proportionate in order to avoid exposure to claims of unknown dimensions and unreasonably to increase the administrative burden, thereby shielding future sustainability.  The restriction of the scheme was a prudent policy decision concerning the allocation of finite resources in a matter of socio-economic policy.  Neither the aim, nor the means employed, can be said to be manifestly without reasonable foundation, and there is no basis upon which the court may interfere.

[44]      For the foregoing reasons, the reclaiming motion is refused.