SC and 3 Children v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Hodge,Lady Black,Lord Lloyd-Jones,Lord Kitchin,Lord Sales,Lord Stephens |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] UKSC 26 |
| Court | Supreme Court |
Lord Reed, President
Lord Hodge, Deputy President
Lady Black
Lord Lloyd-Jones
Lord Kitchin
Lord Sales
Lord Stephens
Appellants
Richard Drabble QC
Tom Royston
Ciara Bartlam
(Instructed by Child Poverty Action Group)
Respondents
Sir James Eadie QC
Galina Ward
Yaaser Vanderman
(Instructed by The Government Legal Department)
Intervener (Equality and Human Rights Commission)
Helen Mountfield QC
Raj Desai
(Instructed by Equality and Human Rights Commission)
Heard on 20, 21 and 22 October 2020
( with whom Lord Hodge, Lady Black, Lord Lloyd-Jones, Lord Kitchin, Lord Sales and Lord Stephens agree)
This appeal concerns the fact that entitlement to one of the components of one of the welfare benefits available in the United Kingdom, namely the individual element of child tax credit, is limited to a maximum amount, calculated as the amount payable in respect of two children. That limitation is challenged in these proceedings as being incompatible with the European Convention on Human Rights (“the Convention”, or “the ECHR”), as given effect by the Human Rights Act 1998. The appeal raises a number of important questions in relation to the relevant articles of the Convention, and in relation to the constitutional law of the United Kingdom.
In view of the length of this judgment, it may be helpful at the outset to explain how it is laid out, and the conclusions reached.
(1) After summarising the child tax credit scheme (paras 3–10 below), the facts relating to the appellants (paras 11–12 below), the history of the legislation (paras 13–20 below), and the history of these proceedings (paras 21–23 below), I consider arguments that the limitation of entitlement to the individual element of child tax credit to the amount payable in respect of two children is incompatible with the rights of adults and children affected by it, under article 8 of the Convention, and conclude that those arguments should be rejected (paras 24–33 below).
(2) I next consider an argument that the limitation is incompatible with the rights of adults affected by it, under article 12 of the Convention, and conclude that that argument should also be rejected (paras 34–35 below).
(3) After an introductory discussion of article 14 (paras 36–38), I next consider an argument that the limitation constitutes indirect discrimination against women as compared with men, contrary to article 14 taken together with article 8 or with article 1 of the First Protocol to the Convention (“A1P1”). I conclude that the evidence raises a presumption of discrimination on the ground of gender, and that it is therefore for the Government to establish that the limitation has an objective and reasonable justification (paras 39–54 below).
(4) I next consider an argument that the limitation constitutes direct discrimination against children as compared with adults, contrary to article 14 taken together with article 8, and conclude that that argument should be rejected (paras 55–60 below).
(5) I next consider an argument that the limitation constitutes indirect discrimination against children as compared with adults, and conclude that that argument should be rejected (paras 61–65 below).
(6) I next consider an argument that the imposition of a limitation on entitlement based on the amount payable in respect of two children constitutes direct discrimination against children living in households with more than that number of children, as compared with children living in households with that number of children or fewer. The question whether this argument raises a relevant ground of discrimination is considered, and answered in the affirmative (paras 66–72 below).
(7) In relation to the question whether the measure in question, in so far as it raises a presumption of discrimination on the ground of gender, has an objective and reasonable justification, and the question whether the difference in treatment of children living in households containing three or more children is justifiable, the submissions raise three preliminary questions of general importance (para 73).
(i) The first is whether it is appropriate for our domestic courts to determine whether the United Kingdom has violated its obligations under unincorporated international law. That question is considered at paras 74–96 below, and is answered in the negative.
(ii) The second is whether the approach to proportionality under article 14 set out by this court in Humphreys v Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR 1545, and followed in several later cases, to the effect that the court will respect the policy choice of the executive or the legislature in relation to general measures of economic or social strategy unless it is “manifestly without reasonable foundation”, accurately reflects the approach of the European Court of Human Rights (“the European court”) and should continue to be followed. That question is considered at paras 97–162 below. The answer, put shortly, is that the case law of the European court supports a nuanced approach which is not fully captured by a “manifestly without reasonable foundation” standard of review, and which in some circumstances calls for much stricter scrutiny.
(iii) The third question concerns the use which can be made of Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights, having regard to Parliamentary privilege. That question is considered at paras 163–185 below. The answer, in summary, is that the will of Parliament is expressed in the language used by it in its enactments, which must be the primary source when identifying the aim of the legislation; that ministerial statements, and documents emanating from the executive, such as a ministerial statement of compatibility, cannot be attributed to Parliament or treated as indicative of Parliament's intention; that material placed before Parliament, and statements made in the course of debates, may be relevant as background information in ascertaining the objective of the legislation and its likely practical impact; that material of that kind may also be relevant in demonstrating, as a matter of fact, that issues bearing on proportionality were considered by Parliament during the course of the legislative proceedings; but that the proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members of the legislature.
(8) The final issue, considered at paras 186–209 below, is whether, in the light of the answers to those three questions, (i) the measure in question has an objective and reasonable justification, notwithstanding its greater impact on women, and (ii) the differential treatment of children living in households with more than two children is justifiable. The conclusion reached in each case is that the measure has such a justification, and that the appeal should accordingly be dismissed.
The United Kingdom has for many years operated a system of welfare benefits in order to support individuals and families. Most families with new claims for benefit are supported by universal credit, a holistic benefit which was established by the Welfare Reform Act 2012. But a majority of families receiving benefits at the present time are supported by a variety of longer-established benefits. This appeal is concerned primarily with one such benefit, known as child tax credit, but the aspect of it which is challenged is also a feature of universal credit. It is sufficient for the court to consider the position in relation to child tax credit, since it is common ground that the relevant considerations are the same in each case.
Child tax credit is a non-contributory benefit intended to provide financial support to families with children. It was introduced by the Tax Credits Act 2002 (“the 2002 Act”). It can be claimed by persons who are in work as well as by those who are not. Persons in work who are earning up to £16,385 per annum (or more, depending on their entitlement to working tax credit) can continue to receive child tax credit in full. Above that level of earned income, the amount of child tax credit received is reduced in proportion to the claimant's income until it eventually tapers out altogether.
Child tax credit can be claimed either jointly by a couple or by a single person who is not entitled to make a joint claim: section 3(3) of the 2002 Act. In order to be entitled to child tax credit, the claimant, or either or both claimants in a couple, must be responsible for one or more children or “qualifying young persons”: section 8(1). Children are defined as persons aged under 16, and qualifying young persons are defined as young people aged 16 to 19 who are in “advanced education” or “approved training”. For the sake of simplicity, this judgment will refer to “children” as encompassing both categories. Thus, the person entitled to child tax credit is not the child, but the person responsible for him or her. For this purpose, a person is treated as responsible for a child who is normally living with him or her: the Child Tax Credit Regulations 2002 (SI 2002/2007) (“the 2002 Regulations”), regulation 3.
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