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To meet Mr Blanche's complaint we descend from the high ound of "substantial justice", "broad comparability" and "even handedness".
Instaad we rely upon the provisions section 11(4) (b) and adopt the position that we have the right to take account of exchange rate windfalls but no duty to take account of exchange rate losses.' There must here be scope for Mr Blanche to argue that regulations which 'disregard the vicissitudes of exchange rates represent an improper or unreasonable exercise of the Secretary of State's power.
7. Mr Blanche must enjoy a presentational advantage if he for his part is able to demonstrate clear lack of evén handedness in a provision which deals only with the advantageous consequences of exchange rate movement. Against that our reliance on a narrow reading of section 11(4) and reference to the indirect consequences of sterling safeguard for basic pension would appear unattractively stiff. It is a position which is inconsistent with the flexibility which we elsewhere argue exists.
8.
Mr Blanche's own arguments seem rather unfocussed at this stage. If he were to concentrate on the purposes of the Act ie the provision of increases to pension and broadly equivalent supplement rather than the sterling safeguard aspect he would be coming closer to the mark. He must also argue in relation to section 11(4) in terms of requirement rather than right. Thus he must argue that in making the regulations the Secretary of State is not vested as simply with a right to take account of additions to the value of pensions, he is required to do so. If it is tha Case that "other additions" extends to additions produced as a result of exchange rate circumstances then he will not properly have taken account of that addition if he does not have regard to the nature of an addition which may at another time he afisat by losses. Taking that circumstance into account the Secretary of State exercises his power improperly if he puts in place a one-sided provision which makes no attempt to deal with such offset.
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9. Whether discouraged by legal cost ΟΙ _opinion combination of both Mr Blanche does not appear to be disposed at this time to raise judicial review proceedings. If an amendment along the lines you have proposed is not to go forward then we must hope that he is not stimulated by the Sir Nigel Reed case or any other cause to take a bolder approach. The implications should he successfully strike down the 1977 amendments would appear to be considerable.
Pass:
D F CASSIDY
Solicitor's Office
Room 3/17
New St Andrew's House
Ext 4901
April 1993
C31007.043