Submitted by Denitsa on
UNITED KINGDOM
Title:
R (on the application of SG and others (previously JS and others)) (Appellants) v. Secretary of State for Work and Pensions (Respondent)
Court:
Supreme Court
Date:
18 March 2015
CRC Provisions:
Article 3: Best interests of the child
Article 27: Standard of living
Other International Provisions:
European Convention on Human Rights, Article 8: Right to respect for private and family life
European Convention on Human Rights, Article 14: Prohibition of discrimination
European Convention on Human Rights, Protocol 1, Article 1: Protection of possessions
Charter of Fundamental Rights of the European Union, Article 24(2): The rights of the child
Domestic Provisions:
Welfare Reform Act 2012
Benefit Cap (Housing Benefit) Regulations 2012
Human Rights Act 1998
Case Summary:
Background:
The Supreme Court considered an appeal against a decision which held that the “benefit cap” introduced by the Welfare Reform Act 2012 and the Benefit Cap (Housing Benefit) Regulations 2012 is lawful. This cap limits the amount of welfare benefits that a person can claim and the two items most likely to trigger its operation are housing benefits and the number of children in the family.
The case challenging the cap was brought by four claimants - the mother and youngest child of two families, each single-parent households - who were forced into temporary accommodation in London. They argued that the cap discriminates against women because the majority of non-working households receiving the highest levels of benefits are single parent households, and most single parents are women. They relied on the right to non-discrimination in Article 14 of the European Convention on Human Rights (ECHR) in conjunction with the right to peaceful enjoyment of one’s possessions under Article 1 of Protocol 1 of the ECHR.
Issue and resolution:
Best interests of the child; right to adequate standard of living and social security; whether the ‘benefits cap’ policy amounts to gender discrimination in the right to enjoyment of property by disproportionately affecting lone parents. The Supreme Court dismissed the appeal by a majority of 3-2 holding that the cap was justifiable and lawful. The Court also examined the relevance of Article 3 CRC and the CRC’s applicability in the UK.
Court reasoning:
The Supreme Court accepted that the provisions on the cap indirectly result in differential treatment of men and women in relation to welfare benefits, and that the benefits constitute “possessions” falling within Article 1 of the First Protocol to the ECHR. The question was whether the difference in treatment can be justified as proportionate means of meeting legitimate aims.
The majority - Lords Reed, Hughes and Carnwath - concluded that the aims of the cap are legitimate and proportionate and rejected the appeal. In their opinion, the aims of the cap (to secure the economic wellbeing of the UK, incentivise work and change social behaviour over the longer term) are all legitimate. In assessing the proportionality of a measure taken to achieve the legitimate aims, the European Court of Human Rights respects the States’ margin or appreciation, because national authorities are best placed to make these decisions given their direct knowledge of their society and its needs, except where the State’s choice is 'manifestly without reasonable foundations'. The majority decided that this was not the case, and therefore, the Regulations on the cap are lawful. It was also noted that the question of whether the cap needs to be set higher is a political question and not one for the courts.
The Lords were divided on the issue whether, and if so to what extent, the CRC is relevant to the determination of the lawfulness of the Regulations. Lord Reed was firm that UK courts cannot interpret or apply unincorporated treaties such as the CRC and, in his opinion, the CRC was also not relevant to the determination of whether a breach of the ECHR has occurred, because the appeal alleged violations of the rights of women (who are the recipients of benefits and thus holders of the right to property under Article 1 of Protocol 1 to the ECHR) and not the rights of children. Lord Hughes questioned whether ECHR jurisprudence requires that the CRC is examined at all, regardless against whom discrimination is alleged. Although he agreed with Lord Reed that the CRC is not relevant when considering a breach of the ECHR in the present case, Lord Carnwath stated that the Government did not show the Court they had complied with Article 3 CRC. This is because the cap meant that some children will lose benefits, for reasons that have nothing to do with their own needs, but are solely related to the circumstances of their parents. Finally, Lord Carnwath urged the government to address the finding of the cap’s incompatibility with the UK’s obligations under the CRC.
Dissenting opinions:
Lady Hale
Lady Hale stated that the Court’s analysis should be illuminated by other international human rights instruments to which the UK is a party, most notably the CRC, under which the UK has binding obligation to treat children’s best interests as a primary consideration in all actions concerning children.
She rejected the government’s argument that the policy cap’s aim of reducing ‘benefits culture’ is compatible with the best interests of children in the long term. Article 3 of the CRC requires that the best interests of any particular child are taken into account, and therefore the policy infringes Article 3 because it is not possible to serve the present or future interests of any child by compromising their parent’s ability to provide them with adequate food, clothing, warmth and housing.
In the light of the best interests of the child as a primary consideration, the discriminatory way in which benefits cap has been implemented cannot be considered justified. This is because the main aim (to incentivise work and change the benefits culture) has little force in the context of lone parents, for whom work may not be an option, especially considering the fact that parents of children under the age of five in the UK are not required to look for work in order to claim benefits. Furthermore, depriving these people of the basic means of subsistence cannot be a proportionate means of achieving the aims of the policy.
Lord Kerr
Lord Kerr’s dissent discussed the direct effect of Article 3 of the CRC in English law. The rationale for the existence of the dualist theory, which comprises the rules of non-justiciability and no direct effect, is to prevent abuses by the government to the detriment of citizens. Human rights treaties, however, by their very nature aim to protect individuals from abuses at the hands of the state. Lord Kerr concluded that this warrants that an exception to the dualist theory is recognised with regards to international human rights treaties.
Even if one didn’t consider the CRC to have direct effect, Lord Kerr decided that the CRC and other international conventions should be considered legally relevant in the determination of whether there is a breach of the ECHR. In this case, no primacy was given to the rights of children. Lord Kerr agreed with Lady Hale that the cap is contrary to the best interests principle for the same reasons she gave in her dissent, noting that the interests of children cannot be dissociated from the interests of their lone parent.
Excerpts citing CRC and other relevant human rights instruments:
Lord Reed
78. An argument of a different character was put forward on the basis of article 3(1) of the United Nations Convention on the Rights of the Child (“UNCRC”), which provides that “in all actions concerning children… the best interests of the child shall be a primary consideration”. The argument developed during and after the hearing of the appeal. Initially, it was contended that the Secretary of State was obliged by section 6 of the Human Rights Act to treat the best interests of children as a primary consideration when making the Regulations, in accordance with article 3(1) of the UNCRC, since the cap had an impact upon the private and family lives of children forming part of the households affected. Article 8(1) of the ECHR was therefore applicable. Since the European court would have regard to the UNCRC when applying article 8 in relation to children, it followed that the Secretary of State was also obliged to comply with article 3(1) of the UNCRC, but failed to do so.
79. This argument raises a number of questions. In the first place, there is the question whether general legislation which limits welfare benefits, resulting in some cases in a reduction in household income, constitutes, by reason of the impact of that reduction in income upon the lives and circumstances of those affected, an interference with their right to respect for their private and family life. If it does, the ambit of article 8 is enlarged beyond current understanding so as to embrace legislation imposing increases in taxation or reductions in social security benefits. Secondly, on the assumption that such legislation falls within the ambit of article 8(1), article 8(2) permits an interference with the right to respect for family life to be justified as being necessary in a democratic society in the interests of the economic well-being of the country. The argument that justification on that ground is impossible unless the best interests of the children affected by the measure in question have been treated as a primary consideration - not only in the sense that they have been taken into account but, as counsel emphasised, in the sense that the legislation is in reality in the best interests of the children affected by it – has major implications for the effect of the ECHR in relation to legislation in the field of taxation and social security.
80. These issues were not addressed in the course of the argument. Most of the European authorities cited in support were concerned with the different question of the eviction of individuals from their homes, which is not an issue arising on the facts of the present cases... It is unnecessary to say more than that the argument has not been made out.
81. A more closely reasoned argument has been developed in submissions lodged after the hearing, which treats article 3(1) of the UNCRC as forming part of the proportionality assessment under article 14 of the ECHR read with A1P1. In consequence, a test of compliance with article 3(1) is effectively substituted for the “manifestly without reasonable foundation” test which all parties agree to be applicable in the present context. On that basis, article 3(1) is argued to be decisive of the appeals. It is therefore necessary to consider carefully how, if at all, article 3(1) bears on the issues in these appeals.
82. As an unincorporated international treaty, the UNCRC is not part of the law of the United Kingdom (nor, it is scarcely necessary to add, are the comments upon it of the UN Committee on the Rights of the Child). “The spirit, if not the precise language”, of article 3(1) has been translated into our law in particular contexts through section 11(2) of the Children Act 2004 and section 55 of the Citizenship, Borders and Immigration Act 2009: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, para 23. The present case is not however concerned with such a context.
83. The UNCRC has also been taken into account by the European Court of Human Rights in the interpretation of the ECHR, in accordance with article 31 of the Vienna Convention on the Law of Treaties. As the Grand Chamber stated in Demir v Turkey (2008) 48 EHRR 1272, para 69, “the precise obligations that the substantive obligations of the Convention impose on contracting states may be interpreted, first, in the light of relevant international treaties that are applicable in the particular sphere”. It is not in dispute that the Convention rights protected in our domestic law by the Human Rights Act can also be interpreted in the light of international treaties, such as the UNCRC, that are applicable in the particular sphere.
86. It is clear, therefore, that the UNCRC can be relevant to questions concerning the rights of children under the ECHR. There are also cases in which, although the court has not referred to the UNCRC, it has taken the best interests of children into account when considering whether an interference with their father’s or mother’s right to respect for their family life with the children was justified. An example is the case of Űner v Netherlands (2006) 45 EHRR 421, which concerned the deportation of an adult, resulting in his separation from his children. In circumstances of that kind, the proportionality of the interference with family life could not be assessed without consideration of the best interests of the children, a matter which was relevant to respect for his family life with them, as it was also to their right to respect for their family life with him. Indeed, they might themselves have been applicants, on the basis that their own article 8 rights were engaged.
87. The present context, on the other hand, is one of alleged discrimination between men and women in the enjoyment of the property rights guaranteed by A1P1. That is not a context in which the rights of the adults are inseparable from the best interests of their children. It is of course true that legislation limiting the total income which persons can receive from benefits, like any legislation affecting their income, may affect the resources available to them to provide for any children in their care, depending upon how they respond to the cap: something which will vary from one case to another. They may increase their income from other sources, for example by obtaining employment or by obtaining financial support for the upkeep of a child from an absent parent; or they may respond by reducing their expenditure, for example by moving to cheaper accommodation. Depending on how parents respond, the consequences of the cap for their children may vary greatly, and may be regarded as positive in some cases and as negative in others.
88. The questions (1) whether legislation of this nature should be regarded as “action concerning children”, within the meaning of article 3(1) of the UNCRC, (2) whether that provision requires such legislation to be in the best interests of all the children affected by it, and (3) whether the Regulations fulfil that requirement, appear to me to be questions which, for reasons I shall explain, it is unnecessary for this court to decide. Even on the assumption, however, (1) that article 3(1) of the UNCRC applies to general legislation of this character, (2) that article 3(1) requires such legislation to be in the best interests of all the children indirectly affected by it, and (3) that the legislation in question is not in reality in the best interests of all the children indirectly affected by it, that does not appear to me to provide an answer to the question whether the legislation unjustifiably discriminates between men and women in relation to their enjoyment of the property rights guaranteed by A1P1.
89. It is true that the benefits which are taken into account when deciding whether the cap has been exceeded include benefits payable to parents by reason of their responsibility for the care of children. It is also true that the differential impact of the measure upon men and women arises from the fact that more women than men take on responsibility for the care of their children when they separate. It is argued that it is therefore unrealistic to distinguish between the rights of women under article 14 read with A1P1, and those of their children under the UNCRC. There is nevertheless a clear distinction. In cases where the cap results in a reduction in the resources available to parents to provide for children in their care, the impact of that reduction upon a child living with a single father is the same as the impact on a child living with a single mother in similar circumstances, or for that matter a child living with both parents. The fact that children are statistically more likely to be living with a single mother than with a single father is unrelated to the question whether the children’s rights under article 3(1) of the UNCRC have been violated. There is no factual or legal relationship between the fact that the cap affects more women than men, on the one hand, and the (assumed) failure of the legislation to give primacy to the best interests of children, on the other. The conclusion that the cap is incompatible with the UNCRC rights of the children affected therefore tells one nothing about whether the fact that it affects more women than men is unjustifiable under article 14 of the ECHR read with A1P1. The contrary view focuses on the question whether the impact of the legislation on children can be justified under article 3(1) of the UNCRC, rather than on the question whether the differential impact of the legislation on men and women can be justified under article 14 read with A1P1, and having concluded that the legislation violates article 3(1) of the UNCRC, mistakenly infers that the difference in the impact on men and women cannot therefore be justified.
90. Nor is the argument made stronger by being recast in terms of domestic administrative law, on the basis that the decision to make the Regulations was vitiated by an error of law as to the interpretation of article 3(1) of the UNCRC. It is firmly established that UK courts have no jurisdiction to interpret or apply unincorporated international treaties: see, for example, J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499; R v Lyons (Isidore) [2002] UKHL 44; [2003] 1 AC 976, para 27. As was made clear in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE Intervening) [2008] UKHL 60; [2009] AC 756, it is therefore inappropriate for the courts to purport to decide whether or not the Executive has correctly understood an unincorporated treaty obligation. As Lord Bingham of Cornhill said at para 44: “Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the United Kingdom by fear that their decisions might be held to be vitiated by an incorrect understanding.” Lord Brown of Eaton-under-Heywood expressed himself more emphatically (para 67): “It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state’s international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue.”
91. The case of R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, on which reliance is placed, is distinguishable from the present case on the same basis as it was distinguished in the Corner House Research case. In the first place, as Lord Bingham pointed out (para 44), there was in Launder no issue between the parties about the interpretation of the relevant articles of the Convention, whereas in Corner House, as in the present case, the court was being asked to determine, in the absence of any international judicial authority, the meaning of a provision of an unincorporated international treaty. Secondly, as Lord Brown noted (para 66), Launder was a case in which it was plain that the decision-maker would have taken a different decision had his understanding of the treaty been different: his clear intention was to act consistently with the United Kingdom’s international obligations, whatever decision that would have involved him in taking. In Corner House, on the other hand, the primary intention behind the decision was to save this country from a threat which it faced, and all that the Ministers were really saying was that they believed the decision to be consistent with the international obligation in question.
Lord Carnwath:
100. It is important also to understand how the interests of children affected by the scheme may be relevant to the legal analysis, either under the Convention itself, or indirectly by reference to article 3(1) of the UNCRC (best interests of children as “a primary consideration”). As to the Convention, the children have no relevant possessions under A1P1 in their own right; nor are they a protected class under article 14. However, as Lady Hale has said (para 218), the disproportionate impact on women arises because they are responsible for the care of dependent children. [...] I agree. Accordingly, in considering the nature of the admittedly discriminatory effect of the scheme on lone parents, and its alleged justification, the effects on their children must also be taken into account.
101. The possible relevance of UNCRC article 3(1) requires a little more explanation. Before the Divisional Court (para 45) Mr Eadie QC was recorded as having submitted on behalf of the Secretary of State that, as “an international instrument with no binding effect in English law”, the Convention had no bearing on the case. This argument was rejected by Elias LJ and has not been renewed. The Court of Appeal said: “69. The Divisional Court held that, notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence: see Neulinger v Switzerland (2010) 28 BHRC 706, cited by Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at para 21. This has not been challenged by the Secretary of State on this appeal.” (para 69) Whether or not for this reason, issue (iv) was agreed by the Secretary of State in a form which raised directly the issue of compliance with article 3(1), without overtly questioning its legal relevance, or advancing any substantive argument on that issue. In the circumstances it seemed right to proceed on the basis, conceded rather than decided, that the obligations imposed by article 3(1) were matters to be taken into account under the Convention on Human Rights. As will be seen, this has now emerged as a crucial issue following the post-hearing exchanges. However, before returning to it in that context, I will consider the treatment of the discrimination issues, and in particular article 3(1), in the courts below.
105. The comments in this court in H (H) predated, and therefore did not take account of, the most authoritative guidance now available on the effect of article 3(1). This is in “General Comment No 14”, adopted by the UN Committee on the Rights of the Child early in 2013. Although this guidance was not available at the time of the decisions under challenge, it is as I understand it intended as a restatement of established practice, rather than a new departure.
106. Paragraph 6 explains that “best interests” in this context is a “three-fold concept”: (a) a substantive right, (b) a fundamental, interpretative legal principle, and (c) a rule of procedure. The first and third are explained as follows:
“(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made
concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.
…
“(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision - making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.”
107. Later paragraphs explain that the phrase “actions concerning children” is to be read in a “very broad sense” covering actions including children and other population groups, such as those relating to housing (para 19); that where a decision will have a major impact on children “a greater level of protection and detailed procedures to consider their best interests (are) appropriate (para 20)”; and that the child’s interests “have high priority and (are) not just one of several considerations... larger weight must be attached to what serves the child best” (para 39).
110. Those assessments also predated the report by the Children’s Commissioner in January 2012, which set out a number of “likely outcomes” of concern to the Commissioner. They included increase in child poverty (including diversion to housing costs of money which would otherwise have been spent on “necessities for children’s health and wellbeing”), children losing their homes, incentivising family breakdown, and disproportionate impact on children from some BME groups. The Commissioner expressed the view that “the universal imposition of the cap without regard to the individual circumstances of children” would conflict with the best interests principle under UNCRC article 3(1). This view had special significance, as that of the authority responsible under the Children Act 2004 for advising the Secretary of State on the interests of children.
113. In post-hearing submissions permitted by the court, the point was taken on behalf of the Secretary of State that A1P1 (with or without article 14) was not the context in which article 3(1) UNCRC had hitherto been relied on by the appellants. [...]
114. They summarised their submissions in the following six points:
(i) Article 3(1) of the UNCRC is a provision of an unincorporated treaty which may only be relied on to the extent that it has been transposed into domestic law;
(ii) The ECtHR uses international law when determining the meaning of provisions of the ECHR, in accordance with the Vienna Convention on the Interpretation of Treaties;
(iii) Article 3(1) of the UNCRC is, as a matter of principle and in accordance with Strasbourg authority, not relevant to the question of justification of discrimination under article 14 read with A1P1. It has no role to play in determining the meaning of article 14 (read with A1P1 or otherwise), and does not inform or illuminate the question whether the differential impact on women of the benefit cap is proportionate;
(iv) Article 3(1) of the UNCRC does not supplant, dilute or compromise the Stec test which all parties have agreed, at every stage of these proceedings, applies both when considering whether the aims are legitimate and when determining whether the 2012 Regulations, having regard to their differential impact on women, are proportionate;
(v) Even if the Court were to consider it foreseeable that the ECtHR may develop its case - law to have the effect that a breach of article 3(1) of the UNCRC renders legislation disproportionate, there are strong constitutional reasons why the Court should refrain from going beyond the current Strasbourg jurisprudence; and
(vi) In any event, the 2012 Regulations do not breach article 3(1) of the UNCRC. The Secretary of State fully took into account the best interests of children, as a primary consideration, and these were extensively debated in Parliament.
115. [...] To that extent the present case is to be contrasted with cases such as ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, in which as Lady Hale explained (para 23), UNCRC article 3(1) was reflected in the relevant statutory provisions. Ministerial statements of the government’s “commitment” to giving “due consideration” to the UNCRC articles (see Lady Hale para 214), may have political consequences but are no substitute for statutory incorporation.
117. Mr Drabble relies on X v Austria (2013) 57 EHRR 405, as the “clearest” example, in that case relating to article 14 taken with article 8. The Court held that a law preventing second parent adoption in the case of same-sex marriages involved discrimination under 14, and, although the law served a legitimate aim, it had not been shown that an absolute prohibition was necessary for the protection of the families or children. Early in its judgment (para 49) the court had quoted UNCRC article 3, and also article 21 which requires that systems of adoption shall “ensure that the best interests of the child shall be the paramount consideration”.[...] Of this case Mr Sheldon QC for the Secretary of State commented:
“the court carried out the proportionality exercise (in respect of article 14 read with article 8) in the usual way and only subsequently observed that the outcome “would also appear to be more in keeping with the best interests of the child”. That is not the same as using the UNCRC for the purposes of carrying out the balancing exercise itself. Still less does it involve using the UNCRC to alter the proportionality test.” If that was intended to suggest that the reference to the UNCRC was purely incidental to the court’s reasoning, I cannot agree. The prominence given to the relevant articles in the earlier exposition of the relevant law shows to my mind that it was treated as a significant part of the consideration of article 14, albeit in a very different factual context to the present case.
118. Another Strasbourg case in which reliance was placed on the UNCRC as an aid to interpretation of the Convention, in this case in favour of the state, was Ponomaryov v Bulgaria (2011) 59 EHRR 799. The complaint was of a violation of article 14 taken with A2/P1 (right to education), by direct discrimination on the grounds of nationality with respect to the provision of secondary education. In dismissing the application, the court relied on UNCRC article 28 as supporting the view that the state enjoyed a greater margin of appreciation in relation to secondary as compared to primary education (para 57).
122. It is not in dispute that, as asserted, issues in relation to the interests of children “were extensively debated in Parliament” or that the views so expressed were taken into account by Ministers. But article 3(1) is more than a restatement of the ordinary administrative law duty to have regard to material circumstances. The principles were summarised by Lord Hodge in Zoumbas v Secretary of State for the Home Department (AF (A Child) intervening) [2013] 1 WLR 3690 (paras 10-13) in seven points. I would emphasise the first and last: (1) “The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR”...; (7) “A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent”. On the other hand, as he added (by reference to H(H)) there may be circumstances in which “the weight of another primary consideration can tip the balance and make the interference proportionate even where it has very severe consequences for children” (para 13).
129. The more difficult question, now that it has been put in issue, is how that finding in relation to the interests of children under UNCRC article 3(1) affects the resolution of issue (iii): that is the alleged justification for the admittedly discriminatory effects on women as lone parents. As Mr Sheldon submits, even if article 3(1) had a role to play in illuminating article 14, this could only be where the alleged indirect discrimination, or differential treatment, was in respect of children. In the present case, by contrast, the allegation is of discrimination, not against children, but against their mothers. The children, it is said, will be treated the same whether their lone parents are male or female. With considerable reluctance, on this issue agreeing with Lord Reed, I feel driven to the conclusion that he is right.
133. In conclusion I would dismiss the appeal, albeit on grounds much narrower than those accepted by the courts below. I would hope that in the course of their review of the scheme, the government will address the implications of these findings in relation to article 3(1) itself. However, it is in the political, rather than the legal arena, that the consequences of that must be played out.
Lord Hughes
134. I agree with the judgment and conclusions of Lord Reed and would like him dismiss this appeal. I add only some additional observations in view of the difference of opinion which is disclosed by the judgments of Lady Hale and Lord Kerr.
136. The difference of opinion reduces itself to the place of article 3 of the UN Convention on the Rights of the Child (“UNCRC”). That in turn involves two questions: (a) does article 3 have legal effect in English law and if so by what route?
and
(b) if it does, has there been a breach of it such as to render the Regulations unlawful?
137. Article 3 UNCRC is contained in an international treaty ratified by the UK. It is binding on this country in international law. It is not, however, part of English law. Such a treaty may be relevant in English law in at least three ways. First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations. Second, international treaty obligations may guide the development of the common law. [...] Neither has any application to this case. This case is concerned with legislation, not with the common law, and it is not suggested that there is any room for doubt about the meaning of the regulations. Thirdly, however, the UNCRC may be relevant in English law to the extent that it falls to the court to apply the European Convention on Human Rights (“ECHR”) via the Human Rights Act 1998. The European Court of Human Rights has sometimes accepted that the Convention should be interpreted, in appropriate cases, in the light of generally accepted international law in the same field, including multi-lateral treaties such as the UNCRC. [...]
138. It was on this third basis that the UNCRC was advanced in argument before this court and, as I understand it, in the courts below.Until post-hearing submissions in this court, this argument was confined to praying in aid article 3 UNCRC upon the application or content of article 8 of the ECHR (respect for private and family life). In turn, the complaint of infringement of article 8 was based upon the rights of the children affected by the cap, not of their mothers except to the extent that they were, as carers, directly involved in the article 8 rights of their children. Article 3 UNCRC was not, until the post-hearing submissions, advanced as relevant to the justification of the admitted indirect discrimination against women in r elation to their A1P1 rights.
139. [...] None of the judgments suggests that article 8 is engaged. I agree that it is not. It follows that article 3 UNCRC cannot have effect in English law on the grounds that it is relevant to its interpretation.
140. The additional argument now formulated before this court and accepted by Lady Hale and Lord Kerr would give article 3 UNCRC the force of domestic English law on the grounds that it bears on the issue of whether the agreed discrimination against women in relation to their A1P1 rights was justified. Lord Kerr would additionally give article 3 direct effect on the grounds that the UK’s signature to the convention is sufficient to impose a domestic duty to comply with it. Like Lord Reed and Lord Carnwath, I am unable to accept these arguments.
141. It may not be difficult to see that in interpreting the content of the article 8 rights of children, it may be legitimate to take into account the international obligation contained in article 3 UNCRC. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166 was an article 8 case where the relevance to that article of the interests of the children of a potential deportee was conceded. Similarly, Neulinger v Switzerland (2010) 54 EHRR 1087 depended upon article 8. It concerned an order directly about the upbringing of a child, namely an order for return to another state pursuant to the Hague Convention on the Civil Aspects of Child Abduction, and the very first words of that convention declare the interests of children to be of paramount importance in matters relating to their custody. [...]
142. [...] Demir does not mean that the UNCRC (in this case) becomes relevant to every ECHR question which arises, simply because children are as a matter of fact affected by the decision or legal framework under consideration.
143. It is said that the Strasbourg court has invoked article 3(1) UNCRC in the context of a discrimination claim in X v Austria (2013) 57 EHRR 405. [...]
144. [...] The court adopted its usual practice of setting out international instruments in the field, and thus included article 3(1) UNCRC. The decision in question (adoption) related directly to the upbringing of the child. It is unsurprising that the court referred (somewhat in passing) at para 146 to the fact that its conclusion was also more in keeping with the best interests of the child, which it noted to be a key notion in the relevant international instruments. It might have added that in the great majority of developed states there is consensus that questions of a child’s upbringing must be determined by his or her best interests or welfare as the dominant or paramount consideration: in England this principle is long-established law and now encapsulated in section 1(1) of the Children Act 1989.
145. At its highest, this decision is another in which the UNCRC is referred to as relevant to the content of article 8 rights, and thus to the issue of justification for discrimination in relation to such rights. That is a
very long way from saying that article 3(1) is relevant to justification upon any kind of discrimination issue, whether or not the decision is about the child’s upbringing, and whether or not either the ECHR rights of the child or article 8 rights of his family are at stake. Such issues simply did not arise in X v Austria.
146. If the rights in question are the A1P1 property rights of women, and their associated derivative right not to be discriminated against in relation to those rights, it is an impermissible step further to say that there is any interpretation of those rights which article 3 UNCRC can inform. In the case of article 8, the children’s interests are part of the substantive right of the parent which is protected, namely respect for her family life. In the case of A1P1 coupled with article 14, the children’s interests may well be affected (as here), but they are not part of the woman’s substantive right which is protected, namely the right to be free from discrimination in relation to her property. There is no question of interpreting that article 14 right by reference to the children’s interests. The protected right to respect for family life under article 8 is entirely different from the protected right to property under A1P1. [...]
147. I also agree that to treat failure to comply with article 3(1) UNCRC as determinative of the present case would be tantamount to departing from the Stec test for justification which has been agreed on all sides throughout this litigation.
Was there a breach of article 3 UNCRC?
148. It is unnecessary to decide this question, but I ought to say that in my view it is clear that there was in any event no breach of article 3.
149. The language of article 3(1) does give rise to some difficulty. It is in these terms: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This departs from the formulation of the paramountcy principle for decisions about the upbringing of a child, or for legislation designed for the protection/advancement of children, mentioned at para 142 above. This paramountcy formulation is employed in the UNCRC but only in relation to one kind of upbringing decision, namely adoption (article 21). The different language of article 3(1) begs two important questions:
(a) what is the extent of the expression “actions concerning children”;
and
(b) what is the meaning of “a primary consideration”.
150. It might be thought that article 3 was intended to apply to decisions directly about a child, or perhaps to those and to others directly affecting him, such as for example decisions relating to the provision of education or child-support facilities, and that “a primary consideration” therefore imports some priority for the best interests of children even if short of making them determinative, as the paramountcy principle does. That might perhaps be suggested by article 3(3) which clearly is specific to the care and protection of children, while article 3(2), which requires states to take appropriate legislative and administrative measures to ensure that the child has such protection and care as is necessary for his well-being, is also perfectly consistent with this. This is not, however, the view taken in General Comment 14, adopted by the UN Committee on the Rights of the Child at its 2013 session, referred to by Lord Carnwath at para 105, and foreshadowed by earlier similar documents.
151. That Comment suggests (at para 19) that article 3 extends well beyond decisions directly about children to those which indirectly affect either individual children or children in general, “eg related to the environment, housing or transport”. If the meaning of article 3(1) is as broad as this, then all manner of court decisions may fall within it; a planning decision relating to housing development might be one, whilst the making of a possession order against a tenant who has children, or the enforcement of money judgments against the family motor car, or the sentencing of him for a serious criminal offence might be others.
152. Pace Lord Carnwath, I do not take it as read that the Committee's views, although entitled to careful consideration coming from the source that they do, can be regarded as binding upon party States as to the meaning of the treaty to which they agreed. But it is neither necessary nor appropriate to attempt to resolve these issues in this case, especially since we heard no argument upon them. All that needs to be said is that it is clear that the wider the reach of the concept of "decisions concerning" either an individual child or children in general, the less possible it is to impose the best interests of such child or children as a determinative or even priority factor over the frequently complex legal or socio-economic considerations which govern such decisions. The committee's general comment gives some acknowledgement to this problem in, for example, para 20, which recognises that although all State actions may affect children, a full and formal process of assessing their best interests is not called for in every case, and in para 32 where it is stated that the concept of the child's best interests is flexible and adaptable.
153. The Committee's General Comment also realistically recognises that the relevant best interests of children will, in relation to decisions which are not simply about identified individual children, include those of children generally. This is apparent throughout the document, including in those passages from para 102 cited by Lord Carnwath. I respectfully agree with Lady Hale that where article 3(1) applies it is not enough to consider only the interests of children generally, without also evaluating the interests of any likely to be particularly affected by the legislation in prospect, but the converse is also true. It is obvious that in the context of this kind of socio-economic legislation, there will be a tension between, on the one hand, the interests of children generally in promoting the legitimate aims of reducing a culture of benefit-dependency and encouraging work and, on the other, the special interests of those children most likely to suffer an adverse effect of the cap, such as the present appellants. This is realistically recognised by the UN Committee in, for example, para 32 of the Comment, which reads:
"The concept of the child's best interests is complex and its content must be determined on a case-by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof. Accordingly, the concept of the child's best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child's best interests must be assessed and determined in light of the specific circumstances of the particular child. For collective decisions —such as by the legislator —the best interests of children in general must be assessed and determined in light of the circumstances of the particular group and/or children in general. In both cases, assessment and determination should be carried out with full respect for the rights contained in the Convention and its Optional Protocols."
154. Whilst the appellants in the present case relied upon article 3(1) as "substantive and not merely procedural" they did not analyse the extent to which it was asserted that priority ought to be given to children's best interests, still less the interests of which children. Their chief reliance was upon the suggested failure of the Secretary of State properly to have analysed and considered the best interests of children. Relying upon paragraph 6 of the UN Committee's General Comment, the principal submission of Mr Wise QC was that the article 3 obligation required (a) careful consideration of how many children will be or are likely to be affected by the cap, (b) asking what the effect on those children particularly affected by it would be, (c) asking whether the cap could be implemented in a manner protecting such children from adverse effects, and (d) asking whether the general proposition that the cap will lift children out of welfare dependency outweighs the risk to those particularly affected.
155. [...] The evidence could not really be clearer that the Secretary of State did indeed ask the questions which Mr Wise contends are required by article 3 UNCRC. The appellants' real complaint is that he reached what they say is the wrong value judgment when it came to balancing the interests of children (and society) in general against those of particular children likely to suffer adverse effects from the cap. Reasonable people may well either agree or disagree with this value judgment, but to say that one disagrees is not the same as saying that the decision is unlawful.
Lady Hale
157. [...] A further question, which has only emerged after the hearing in April 2014, is the extent to which, if at all, the obligations of the United Kingdom under the United Nations Convention on the Rights of the Child is relevant to that issue.
158. [...] This raises several questions: whether the justification advanced relates to the scheme as a whole rather than to its discriminatory effect; what is the test to be applied in deciding whether the discrimination is justified; and what is the part played by the international obligations of the United Kingdom under the United Nations Convention on the Rights of the Child in assessing that.
213. Likewise, our approach to both discrimination and justification in this case may be illuminated by reference to other international instruments to which the United Kingdom is party, including not only the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was the relevant instrument in Opuz v Turkey, but also most notably the United Nations Convention on the Rights of the Child (UNCRC). In Neulinger v Switzerland (2010) 54 EHRR 31, for example, the Grand Chamber observed, at para 131:
"The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken … of 'any relevant rules of international law applicable in the relations between the parties', and in particular the rules concerning the international protection of human rights ..."
It went on, at para 135, to note "that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children their best interests must be paramount".
214. This may be putting matters a little too high. The relevant international instruments relied upon by the Grand Chamber were, principally, article 3(1) of UNCRC:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
This is pithily echoed in the Charter of Fundamental Rights of the European Union, article 24(2):
"In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration."
215. As this court recognised in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, para 25, "a primary consideration" is not the same as "the primary consideration" still less "the paramount consideration". Nevertheless, the obligation to treat their best interests as a primary consideration in all actions concerning children is binding upon the Government of this country in international law. It has also become relevant in domestic law in at least two ways. First, section 11 of the Children Act 2004 places a duty on a wide range of bodies providing public services to carry out their functions "having regard to the need to safeguard and promote the welfare of children". This duty has also been placed on the Secretary of State for the Home Department in the exercise of her functions in relation, among other things, to immigration, asylum or nationality, by section 55 of the Borders, Citizenship and Immigration Act 2009.
216. This duty has not yet, however, been extended to all Government departments, including the Department of Work and Pensions, with whose decisions we are concerned in this case. Nevertheless, in a Written Statement to Parliament on 6 December 2010, the Minister of State for Children and Families made “a clear commitment that the Government will give due consideration to the UNCRC articles when making new policy and legislation. In doing so, we will always consider the UN Committee on the Rights of the Child's recommendations but recognise that, like other state signatories, the UK Government and the UN Committee may at times disagree on what compliance with certain articles entails." It is not surprising, therefore, that the Joint Committee on Human Rights, in its scrutiny of the Welfare Reform Bill, regretted that the Government had failed to carry out any detailed analysis of the compatibility of the Bill with the UNCRC (Session 2010-2012, 21st Report, Legislative Scrutiny: Welfare Reform Bill, para 1.35). The Government has not resiled from that commitment, which is repeated in the Cabinet Office Guide to Making Legislation (July 2013, para 11.30), but it has not yet been translated into domestic law.
217. However, the international obligations which the United Kingdom has undertaken are also taken into account in our domestic law insofar as they inform the interpretation and application of the rights contained in the European Convention, which are now rights in UK domestic law. There is no reason at all why those obligations should not inform the interpretation of the Convention right to the enjoyment of the substantive Convention rights without discrimination just as much as they inform the interpretation of the substantive Convention rights. ZH (Tanzania) happened to be a case about article 8, as were H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338, and Neulinger itself. The Strasbourg court has taken the UNCRC into account in construing other articles of the Convention, most notably article 6 in relation to the fair trial of juvenile offenders, in T v United Kingdom (2000) 30 EHRR 121.
218. For these reasons, echoing Maurine Kay LJ in Burnip, I agree that our international obligations under the UNCRC and CEDAW have the potential to illuminate our approach to both discrimination and justification. Whatever the width of the margin of appreciation in relation to the subject matter of a measure, the Strasbourg court would look with particular care at the justification put forward for any measure which places the United Kingdom in breach of its international obligations under another human rights treaty to which we are party.
219. Hence it is no surprise that the Divisional Court held that the court should have regard to the UNCRC as a matter of Convention jurisprudence and the Secretary of State did not challenge that view in the Court of Appeal (see para 69 of their judgment) or, initially, in this court. [...] Not surprisingly, therefore, this court took it as common ground that article 3(1) of the UNCRC was relevant to the discrimination issue. The question was whether it had been complied with. After the hearing, however, it became clear that the Secretary of State no longer accepted that article 3(1) was relevant to whether the admitted indirect discrimination could be justified. He was therefore permitted to file further arguments on the issue, to which the appellants and the interveners were permitted to reply. This has had the beneficial effect of enabling us to consider the issue in more detail.
220. The Secretary of State makes two main arguments against taking article 3(1) of UNCRC into account in deciding whether this discrimination can be justified. The first is that the UNCRC, like other international conventions, can inform the substantive content of the Convention rights, but not the approach to proportionality and discrimination. As to proportionality, this argument is clearly negated by the Grand Chamber decision in Neulinger v Switzerland (2010) 54 EHRR 31, where the best interests of the child were taken into account in deciding whether the interference with the parties' rights to respect for their family life, entailed in an order to return to the child's home country of Israel, was proportionate. [...]
222. As to discrimination, the Secretary of State's argument is clearly negated by the Grand Chamber decision in X v Austria (2013) 57 EHRR 14.[...] When dealing with the relevant international law, at para 49, the court begins with the article 3(1) of the UNCRC, before turning to article 21 and other specific provisions on adoption. When discussing the suggested justifications for the discrimination, at para 146, the court concludes that "Unless any other particularly convincing and weighty reasons militate in favour of such an absolute prohibition, the considerations adduced so far would seem rather to weigh in favour of allowing the courts to carry out an examination of each individual case. This would also appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments". T[...] In common with Lord Carnwath, I read this case as clearly indicating that the best interests of the child are to be taken into account in determining whether discrimination is justified under article 14.
226. The Government's contention was that "the long term shift in welfare culture", or "reversing the impact of benefit dependency on families and children", would be beneficial to children in the longer run. This may well be so, although it is interesting how little prominence was given to this aspect of the matter in the justifications put forward by the Government for their policy. But in any event, this is to misunderstand what article 3(1) of the UNCRC requires. It requires that first consideration be given to the best interests, not only of children in general, but also of the particular child or children directly affected by the decision in question. It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life. It is not enough that children in general, now or in the future, may benefit by a shift in welfare culture. Insofar as the Secretary of State relies upon this as an answer to article 3(1), he has misdirected himself.
227. It may be worth noting that the UNCRC contains some specific obligations which go beyond treating children's interests as a primary consideration when making decisions concerning them. Article 27(1) provides that "States Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development". Although parents have "the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development" (article 27(2)), States Parties have to "take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing" (article 27(3)). The usual approach of the Strasbourg court is that the Convention confers no right to be provided with any particular welfare benefit but that, if it is provided, it must be provided in a non-discriminatory manner. The United Kingdom performs its obligations towards children, among other ways, through the welfare benefits system, which provides specific benefits in order that children shall be free from want. The benefit cap deprives some children, principally those in larger families living in high cost accommodation, of provision for their basic needs in order to incentivise their parents to seek work, but discriminates against those parents who are acknowledged to be least likely to be able to do so. The children affected suffer from a situation which is none of their making and which they themselves can do nothing about.
Lord Kerr
223. [...] But I have changed the view that I originally held about the direct effect of article 3 of UNCRC and wish to explain why. If I am wrong in my revised view, there remain two particular issues which separate the majority from Lady Hale's approach (which I would favour as an alternative to my principal conclusion) that I believe are of vital importance and which have implications well beyond this appeal. For that reason, I feel constrained to say something of them as well.
234. The two issues are these: (i) if article 3 does not have direct effect, what is the use to which it may be put in considering the proportionality of a measure which interferes with a Convention right; and (ii) whether there is a sufficient identity of interest between a child and her or his lone parent so as to render discrimination against the child discrimination against the parent. [...]
256. Standards expressed in international treaties or conventions dealing with human rights to which the UK has subscribed must be presumed to be the product of extensive and enlightened consideration. There is no logical reason to deny to UK citizens domestic law's vindication of the rights that those conventions proclaim. If the government commits itself to a standard of human rights protection, it seems to me entirely logical that it should be held to account in the courts as to its actual compliance with that standard. This is particularly so in the case of UNCRC. On its website UNICEF has stated that: "The CRC is the basis of all of UNICEF's work. It is the most complete statement of children's rights ever produced and is the most widely-ratified international human rights treaty in history".
257. I therefore consider that article 3(1) of UNCRC is directly enforceable in UK domestic law. A primacy of importance ought to have been given to the rights of children in devising the regulations which bring the benefits cap into force. For the reasons given by Lady Hale, I have concluded that this has not taken place.
262. Article 3(1) of UNCRC is unquestionably directly relevant to the question of whether a primacy of importance was given to the interests of children in formulating the regulations which give effect to the benefits cap. As I have already said, I agree with Lady Hale that it was not. I will say no more on that topic. The critical issue now is whether there is a sufficient connection between the interests of the children and those discriminated against, viz their lone mothers, to make discrimination against the children of those mothers discrimination against them also. Put another way, as Lord Carnwath does in para 115 of his judgment, is there a direct link between the international treaty relied on and the particular form of discrimination alleged?
267. If the disproportionate effect on lone parents can only be justified by addressing their position as the providers for dependent children, attention to the interests of those children is an integral part of the process. How, otherwise, are their interests to be taken into account? As Lord Reed has said, regard has been had to the UNCRC by the European Court of Human Rights in the application of the ECHR, when considering how its substantive guarantees apply to children. When considering the rights of children as a component part of their mothers' rights under A1P1 and article 14, there is no reason that UNCRC should not likewise infuse the determination of what the content of those rights should be. I therefore agree with Lady Hale that, in considering whether the particular species of interference in this case is justified, the interests of the children affected are, by reason of article 3(1) of UNCRC, to be treated as a primary consideration.
268. Once this position is reached, the question for the government is how to meet the challenge of showing that the measures which discriminate against the child (and ergo the mother) are no more intrusive than they need to be. In this context, I have no difficulty in accepting that the test set out in Stec v United Kingdom (2006) 43 EHRR 47 continues to apply. So, as a yardstick of the proportionality of this general measure of economic or social strategy, the question is whether it was manifestly without reasonable foundation. But, if article 3(1) of UNCRC has to play its part in deciding whether the benefits cap was without reasonable foundation, it requires that first consideration be given to the best interests of the children directly affected by the decision.
CRIN Comments:
CRIN believes this decision is inconsistent with the CRC as it allows the continued operation of a policy which is shown to be contrary to the best interests of children. In addition to the right to have their best interests taken into account, children have the right to benefit from social security, including social insurance (Article 26) as well as a right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Article 27), all of which are infringed by a policy of capping the amount of benefits their parent receives.
Citation:
[2015] UKSC 16
Link to Full Judgment:
https://www.supremecourt.uk/decided-cases/docs/UKSC_2014_0079_Judgment.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
