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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_1773_2007 (23 June 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_1773_2007.html Cite as: [2008] UKSSCSC CIS_1773_2007 |
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[2008] UKSSCSC CIS_1773_2007 (23 June 2008)
CIS/1773/2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
REASONS
"Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as "assistance") provided by the legislation in force from time to time in that part of its territory."
Article 2 makes provision as to the meaning of "assistance". There is no doubt that income support falls within the scope of ECSMA, although I observe that, notwithstanding Article 16, the United Kingdom's entry in Annex I appears not to have been up-dated to reflect developments in domestic law since the Social Security Act 1986 came into force. It was that Act that introduced income support and under which the 1987 Regulations were originally made (a point apparently overlooked by the claimant's former representative in the argument advanced on page 147), although the relevant provisions of that Act has since been consolidated into the Social Security Contributions and Benefits Act 1992. I also observe that it appears that no new declaration under Article 2(a)(ii) as to the meaning of "nationals" has been made to take account of the British Nationality Act 1981.
"… it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function."
(signed on the original) MARK ROWLAND
Commissioner
23 June 2008