Contributory Benefit in UK Law

Despite Mr Cox's submissions, we consider that in answering this question a very considerable margin of discretion must be accorded to the Secretary of State. Difficult questions of economic and social policy were involved, the resolution of which fell within the province of the executive and the legislature rather than the courts. No statistical formula or calculation could provide a precise answer to this question.

The 1992 and 1999 Acts expressly require the Secretary of State to pay benefits to widows in accordance with their terms. If he retains a common law power to make payments to widowers, we cannot see how a decision not to exercise that power can be said to be necessary in order to give effect to the provisions, express or implied, of either Act. The decision of Moses J on this point was in error.

We are no more able to accept this reasoning than we were the similar reasoning in Hooper. It seems to us that section 6(2)(b) addresses the grant by Parliament of a statutory power which, regardless of the circumstances in which it is exercised, will inevitably be incompatible with Convention rights. In such circumstances the power cannot be given effect to in a way which is compatible with the Convention, and thus s.6(2)(b) enables the exercise of the power without breach of section 6(1).

We appreciate the argument that if a failure to exercise a statutory power will inevitably involve a breach of Convention rights, Section 6(2)(b) is engaged, because implicit in the statutory power is the right to refrain from exercising the power. We make no comment as to whether that argument is sound or unsound. We simply observe that it has no application to the facts of this case.

Another test (which is a more developed variant of the one year before test and which I will call "the 50% test") was thus explained by the Commissioner in Decision R (U) 14/59, when he said that where "during the year ending with the day in question (or such other period as may provide a more suitable test in a particular case) a claimant has worked on less than 50 per cent of the days of the week in question (excluding any day of incapacity for work or holiday and days On which he was unemployed because his employment had been terminated) that day should be held to be one on which in the normal course the claimant would not work.

The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance.

I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its justification, a period of consultation, drafting and debate must be included in the time which the legislature may reasonably consider appropriate for making a change. Up to the point at which that time is exceeded, there is no violation of a Convention right.