In 2021 the Supreme Court considered whether limiting the child element of tax credit by family size infringed Convention rights. The policy affected more women than men and drew a distinction between children in different-sized households. The central issue was how a court should assess Parliament’s justification for those effects.
The challenge concerned the law introduced by the Welfare Reform and Work Act 2016. Subject to exceptions, the individual child element was no longer payable for a third or subsequent child born on or after 6 April 2017. The question before the Court concerned the compatibility of that measure as it then applied.
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Two parents and their children challenged the measure. They relied on the rights to private and family life, to marry and found a family, and to enjoy Convention rights without discrimination.
Articles 8 and 12
Lord Reed rejected the articles 8 and 12 arguments. The evidence did not establish interference with these claimants’ reproductive choices, and the courts below had not found that discouraging people from having larger families was a legislative aim. The Convention did not require the state to cover the cost of every increase in family size.
Article 14
Child tax credit falls within the ambit of article 8, and the adult appellants’ complaint also fell within article 1 of the First Protocol, because a benefits scheme, once created, must comply with article 14. The neutral wording of the limit affects more women than men. Official material showed that about 90 per cent of lone parents are women. That raised a presumption of indirect sex discrimination, so the Government had to show an objective and reasonable justification.
Claims that the limit discriminated directly or indirectly against children as compared with adults failed. Children have no personal entitlement to these benefits. Child tax credit is paid to the responsible adult to help meet children’s needs and is not hypothecated to particular children. Adult benefits such as income support are calculated individually and are not linked to the number of children, so adults and children were not in relevantly similar situations having regard to the aims of the measure.
A difference in treatment between children living in households with more than two children and children living in households with one or two children did engage article 14. Being a child in a household containing more than two children was a relevant status, even if the legislation gave that status a more precise definition. The question was therefore whether the difference was justified.
Three questions of principle
First, domestic courts should not decide whether the United Kingdom has breached an unincorporated treaty such as the UN Convention on the Rights of the Child. Under the dualist constitution, such a treaty creates no domestic rights unless incorporated by Parliament. The Human Rights Act gives effect only to the Convention. The European Court of Human Rights may take international materials into account when interpreting the Convention, but it does not determine compliance with other treaties. Remarks in earlier domestic cases treating a breach of the UN Convention as relevant to justification were obiter or made without reference to the governing constitutional authorities, and did not form part of the ratio.
Secondly, the intensity of review under article 14 is nuanced. In welfare benefits, a wide margin is generally appropriate for general measures of economic or social strategy, often expressed by respecting the legislature’s choice unless it is manifestly without reasonable foundation. Very weighty reasons are nevertheless usually required where the difference is based on a suspect ground such as sex. Other factors, including the best interests of children, the presence or absence of a European consensus, and whether a measure forms part of a transitional correction of historical inequality, can raise or lower the intensity of review. The approach associated with Humphreys therefore required modification so that it would not be applied mechanically.
Thirdly, parliamentary privilege limits the use of debates and other parliamentary material. The will of Parliament is expressed in the language of the enactment. Ministerial statements, including a section 19 statement of compatibility, cannot be attributed to Parliament. Background material and debates may help to identify the mischief and show, as a matter of historical fact, that relevant issues were considered. The proportionality of the measure is not, however, to be judged by the quality of the reasons given in debate or by ministers’ subjective intentions.
Justification
The legislation addressed two related problems identified in the material before Parliament: welfare spending, and tax-credit expenditure in particular, had risen to a level regarded as unsustainable, and an unlimited automatic increase for every additional child was considered unfair to working families and to taxpayers. Reducing the fiscal deficit and placing the system on a fairer footing were legitimate aims. The two-child threshold, chosen by reference to an average of 1.7 dependent children and applied only to later-born children after a period of notice, was rationally connected to those aims and was expected to produce substantial savings.
The Court considered the evidence of greater impact on women, particularly because women formed most lone-parent households. It considered whether a different measure could achieve the statutory aims without that unequal effect, and the competing treatment of families in similar financial circumstances.
The distinction between larger and smaller households was likewise the means deliberately chosen to pursue the fairness aim while leaving families of average size unaffected. Children’s best interests were relevant, and Parliament had been made aware of the consequences for children in affected households, but those interests were not conclusive. How far the cost of supporting children should be met by other members of society, consistently with control of expenditure, was a question of political judgment. The measure implemented a manifesto commitment after extensive parliamentary debate in which the opposing arguments, including those of the Child Poverty Action Group, were fully canvassed. There was no proper basis on which the Court could substitute its own view.
Verdict: The Supreme Court unanimously dismissed the appeal. It held the differences in treatment justified and rejected the Convention challenges to the measure before it. Permission to advance two additional article 14 grounds was refused.
