R v Secretary of State for Work and Pensions and others

Article 14 challenges to general measures of economic or social policy require a context-sensitive proportionality assessment. A wide margin of judgment and low-intensity review are usually appropriate, but they are not a mechanical test. Differential treatment on a suspect ground, including sex, will usually require very weighty reasons. Factors such as children’s best interests may also justify closer scrutiny.

Unincorporated treaties create no enforceable domestic rights or obligations. They may inform interpretation of Convention rights, but domestic courts cannot determine whether the United Kingdom has breached them. Parliamentary material may supply background and show that an issue was raised. Courts cannot assess the quality of parliamentary reasoning or attribute ministerial intentions to Parliament.

The legislation limited the individual element of child tax credit to the amount payable for two children, subject to specified exceptions. The adult appellants and their children contended that this restriction infringed articles 8 and 12, and involved discrimination contrary to article 14 read with article 8 or article 1 of the First Protocol.

Ouseley J dismissed the claims in [2018] EWHC 864 (Admin); [2018] 1 WLR 5425. The Court of Appeal dismissed the appeal in [2019] EWCA Civ 615; [2019] 1 WLR 5687. The Supreme Court considered the substantive Convention claims and three general questions concerning unincorporated treaties, the intensity of article 14 review, and the permissible use of parliamentary material.

1. The appeal was dismissed unanimously. Article 8 does not require the state to provide additional income for every additional child. The restriction did not interfere with the adult appellants’ reproductive choices on the evidence, and there was no evidence that it impaired any child’s integration into family life. Article 12 did not apply and, in any event, imposes no positive obligation to provide the material means to found a family.

2. Child tax credit fell within the ambit of article 8 for the adult appellants because it was intended to support families with children. Their complaint also fell within article 1 of the First Protocol. The neutral restriction disproportionately affected women and therefore raised a presumption of indirect sex discrimination. The state bore the burden of establishing objective and reasonable justification.

3. The children were not relevantly comparable with adults for the alleged direct or indirect discrimination between those classes. Child tax credit is paid to responsible adults to support the household and is not allocated to individual children. Being a child in a household containing more than two children was, however, a relevant status under article 14, and the legislation deliberately treated that group differently.

4. An unincorporated treaty forms no part of domestic law and creates no domestic rights or obligations. The Human Rights Act 1998 incorporated only the Convention rights. International materials may inform interpretation of the Convention and the assessment of proportionality, including by establishing that children’s best interests are relevant. Domestic courts cannot determine whether the United Kingdom has breached the UN Convention on the Rights of the Child and then treat that conclusion as affecting domestic rights.

5. The approach adopted since Humphreys v Revenue and Customs Commissioners required modification. The phrase “manifestly without reasonable foundation” describes the wide margin usually appropriate for general measures of social or economic policy; it is not a self-contained or mechanically decisive test. Review must reflect all relevant circumstances. Very weighty reasons will usually be required where the difference concerns a suspect ground such as sex, while children’s best interests may call for closer scrutiny even where the ground is not suspect.

6. Parliament’s intention is expressed primarily through the language of its enactments. Ministerial statements and executive documents cannot be attributed to Parliament. Parliamentary material may provide background, identify the mischief and practical effect, and establish that relevant issues were raised. Parliamentary privilege prevents courts from judging proportionality by the quality of parliamentary reasons, the subjective views of members, or the adequacy of the legislative process.

7. The disproportionate effect on women was objectively justified. It resulted inevitably from the demographic fact that women comprised most single parents, and the legitimate aims could not be achieved without affecting more women than men. The distinction affecting children in larger households was also justified. Parliament was entitled to reduce welfare expenditure and remove an unlimited, automatic increase in child tax credit while setting the limit at a level which did not affect families of average or smaller size. Children’s best interests were relevant but did not outweigh Parliament’s assessment of fairness, affordability and social priorities.

1. United Kingdom Supreme Court: The court unanimously dismissed the appeal in R v Secretary of State for Work and Pensions and others [2021] UKSC 26.
2. Court of Appeal: The court dismissed the appeal from Ouseley J in [2019] EWCA Civ 615; [2019] 1 WLR 5687.
3. Administrative Court: Ouseley J dismissed the claims in [2018] EWHC 864 (Admin); [2018] 1 WLR 5425.