Summary of Judgment

Factual and Procedural Background

The Appeal Tribunal referred two pending appeals to the Court of Appeal under Schedule 10 to the Northern Ireland Act 1998. The first appellant had an unmarried cohabiting relationship; her partner died on 8 June 2017 and her claim for Bereavement Support Payment (BSP) was refused because she was not married. The second appellant had an unmarried cohabiting relationship; her partner died on 21 September 2014 and her claim for Widowed Parents Allowance (WPA) was refused for the same reason. After judicial declarations of incompatibility in higher courts, the Bereavement Benefits (Remedial) Order 2023 ("the Remedial Order") was made with retrospective effect from 30 August 2018, resulting in both appellants being entitled only to backdated benefit from that date. Each appellant pursued further claims and administrative reconsiderations; their appeals to the Tribunal remained pending when the Tribunal exercised its power to refer devolution issues to the Court of Appeal. Company A (the former decision-maker) and Company B (interested party) participated in the referrals. The Court of Appeal heard the consolidated matter and reserved final order pending draft orders from the parties.

Legal Issues Presented

1. In light of the decisions in Re McLaughlin and R (Jackson) v Secretary of State for Work and Pensions, if an appellant establishes a breach of Article 8 taken with Article 14 ECHR, what remedy, if any, should follow arising out of Company A's refusal to grant WPA or BSP for any period prior to 30 August 2018 given the operation of the Bereavement Benefits (Remedial) Order 2023?
2. Whether the Tribunal (or this court) is required by section 6 of the Human Rights Act 1998 and/or section 24(1)(a) of the Northern Ireland Act 1998 to allow the appellants' appeals for periods prior to 30 August 2018 despite the Remedial Order and related statutory framework.

Arguments of the Parties

Appellants' Arguments

• Each appellant relied on established findings of incompatibility (Jackson/Re McLaughlin) and contended that, applying section 6 HRA 1998 (and, for one appellant, section 24(1)(a) Northern Ireland Act 1998), the Tribunal must allow their appeals for the periods prior to 30 August 2018 and award the relevant bereavement benefit for those periods.
• They sought specific remedies: the first appellant sought a declaration entitling her to BSP for 8 June 2017 to 30 August 2018 and that the Tribunal determine her appeal accordingly; the second appellant sought a section 4 declaration that the post-Remedial Order version of the statutory provision was incompatible insofar as it precluded WPA for 21 September 2014 to 29 August 2018.

Company A's Arguments (Respondent)

• Company A accepted that the refusals for the periods prior to 30 August 2018 were incompatible with Articles 8 and 14 ECHR in light of Jackson and Re McLaughlin, but submitted that no further remedial relief should be granted by this court or the Tribunal because Parliament and the executive had responded by making the Remedial Order.
• Company A argued that granting the remedies sought would undermine the constitutional allocation under HRA 1998 (sections 6, 10 and 21), would impermissibly intrude on parliamentary sovereignty and the remedial scheme, and that a challenge to a failure to make a Remedial Order is precluded by section 6(6).
• As alternative relief, Company A proposed at most a declaration that the appellants suffered discrimination contrary to Article 8 read with Article 14 for the periods in question.

Company B's Position (Interested Party)

• Company B participated and supported submissions aligned with Company A, emphasising the effect of the Remedial Order and the statutory and policy context (including parity and the limited retrospectivity of social security remediation).

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reiterating the constitutional framework created by the Human Rights Act 1998: courts may declare primary legislation incompatible (a DOI) but cannot annul or amend primary legislation; remedial action under section 10 is for Ministers/Parliament. The referrals arose because the Tribunal posed a devolution issue under Schedule 10 concerning whether, in light of established incompatibility findings (Re McLaughlin and R (Jackson)), any remedy should be awarded for periods prior to 30 August 2018 notwithstanding the Remedial Order.

The court analysed differences between the two appellants' legal matrices (one involving subordinate legislation amended by the Remedial Order; the other involving primary legislation subject to a prior DOI and then addressed by the Remedial Order). It reviewed relevant authority (including Chester, Mathieson, Carmichael, JT, RR, O'Donnell, Steinfeld and Kelly) and extracted principles: (a) the discretionary nature of remedies under HRA 1998, (b) the special constitutional role of Parliament when primary legislation is declared incompatible, (c) differing treatments of subordinate legislation where a decision-maker may disregard incompatible subordinate provisions but cannot infringe primary legislation, and (d) the significance of a parliamentary/executive remedial response (Remedial Order) to a DOI.

The court balanced factors favouring relief (vindication of rights; legal clarification; encouragement of further remedial action; potential assistance in Strasbourg) against countervailing considerations explicitly identified in the opinion: the parity principle between Northern Ireland and Great Britain; long-standing policy against widespread retrospectivity in social security; the constitutional impropriety of judicially undermining the remedial scheme enacted through section 10 and Schedule 2; that section 6(6) precludes challenge to a failure to make a Remedial Order; the detailed parliamentary process culminating in the Remedial Order; availability of alternative remedies (section 8 damages or Strasbourg); and guiding precedent tending towards judicial restraint where a remedial order has followed a DOI.

Applying the Creednz/Findlay principle, the court concluded that, in the exercise of its discretion and viewing the matter panoramically, the preponderance of relevant considerations weighed against granting the specific remedies sought by either appellant.

Holding and Implications

REMEDIES REFUSED

Holding: The Court exercised its discretion to refuse the remedies sought by both appellants. It concluded that the combined effect of the HRA 1998 remedial scheme, the Remedial Order and the relevant policy and precedent factors precluded granting the relief requested.

Implications: The direct effect is that the Tribunal will determine the two appeals accordingly (i.e., dismissal consistent with the court's reasoning). The court deferred finality to permit the parties to submit a draft final order within 14 days. The court emphasised that its decision was an exercise of discretionary remedial authority under HRA 1998 rather than the creation of a new binding precedent extending beyond the facts and statutory context of these referrals.