"(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

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).

(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."

(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

"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.

"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."

"(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. "

" 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

What did the Minister take into account?

" 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. "

The reasoning on article 2(2) of the UNCRC

Breach of article 2(2)

" 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."