R (SC) v Secretary of State for Work and Pensions

Supreme Court [2021] UKSC 26, [2021] 3 WLR 428, 9 July 2021

Lord Reed P, Lord Hodge DP, Lady Black, Lords Lloyd-Jones, Kitchin, Sales and Lord Stephens

This is a very important decision of the Supreme Court concerning a challenge brought under Articles 8 and 12 ECHR, read alone and with Article 14, to the restriction of the individual element of child tax credit to an amount calculated by reference to two children.  The Supreme Court rejected the challenges under Articles 8 and 12 and, of more relevance to this blog, rejected arguments about direct and indirect discrimination against children , though it accepted that there were prima facie cases of sex discrimination and of direct discrimination against children living in households with more than two children, as compared with children living in households with two or fewer children.

The challenge ultimately failed on justification grounds but the case, which has been cited extensively in virtually every Article 14 case heard by the domestic courts since it was decided, is significant because the Court revisited the “manifestly without reasonable foundation” which had been the orthodox approach to Convention challenges to economic/ social policy in the domestic courts since at least 2012.  The case was also significant in that it reimposed an orthodox approach to the treatment of unincorporated international obligations (here the Convention on the Rights of the Child) and included extensive consideration of the reliance which might be placed by the courts on Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights.

Lord Reed, with whom the rest of the Court agreed, at §37 adopted the approach to Article 14 summarised out by the Grand Chamber of the ECtHR in Carson v United Kingdom, (Application no. 42184/05) (2010) 51 EHRR 13 §61 as follows:

(1) “The court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of art 14.”

(2) “Moreover, in order for an issue to arise under art 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.” 

(3) “Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

(4) “The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.”

At §§39-41 Lord Reed surveyed the ECHR jurisprudence on Article 8 and A1P1, remarking at §41 that “welfare benefits which are designed to facilitate or contribute to family life, by supporting families with children, are likely to fall within the ambit of art 8, for the purpose of complaints under that article taken together with art 14” and concluding that “the complaint of the adult appellants in the present case falls within the ambit of art 8 taken together with art 14”. He went on to consider the jurisprudence on indirect and Thlimmenos discrimination at §§44-53, accepting at §54 that the “limitation on the individual element of child tax credit affects more women than men” and therefore required justification. Lord Reed did not accept (§60) that children and adults were analogously situated for the purposes of an indirect age discrimination claim, further observing at §62 that the ECtHR had never applied the concept of indirect discrimination to a non-suspect ground such as age.

At §66, in response to the argument that the measure treated children living in households containing more than two children differently from other children, Lord Reed “confess[ed] to some doubt as to whether counsel for the child appellants has demonstrated sufficiently the extent to which the limitation has affected their family life for the purposes of art 8” but did “not dismiss the complaint on that basis”. The Court of Appeal in the instant case ([2019] EWCA Civ 615, [2019] 4 All ER 787 ) had, in approaching the question of “status”, taken into account the decision of the Court of Appeal in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 and agreed with the judge below that (§69) “the words from ‘on any ground such as’ to ‘or other status’ … were intended to add something to the requirement of discrimination. It followed that status could not be defined solely by the difference in treatment complained of: it must be possible to identify a ground for the difference in treatment in terms of a characteristic which was not merely a description of the difference in treatment itself. On the other hand, [Leggatt LJ] also observed that there seemed to be no reason to impose a requirement that the status should exist independently, in the sense of having social or legal importance for other purposes or in other contexts than the difference in treatment complained of…”

Leggatt LJ had gone on to accept in the Court of Appeal below that (§70) ‘Being a child member of a household containing more than two children could be regarded as an individual characteristic or status for the purposes of art 14. That was so even if that status was given more precise definition by the legislation”. At §71 Lord Reed agreed, adding that :

“the issue of ‘status’ is one which rarely troubles the European court. In the context of art 14, ‘status’ merely refers to the ground of the difference in treatment between one person and another. Since the court adopts a stricter approach to some grounds of differential treatment than others when considering the issue of justification, as explained below, it refers specifically in its judgments to certain grounds, such as sex, nationality and ethnic origin, which lead to its applying a strict standard of review. But in cases which are not concerned with so-called ‘suspect’ grounds, it often makes no reference to status, but proceeds directly to a consideration of whether the persons in question are in relevantly similar situations, and whether the difference in treatment is justified. As it stated in  Clift v United Kingdom (Application No 7205/07, 13 July 2010) para 60, ‘the general purpose of art 14 is to ensure that where a state provides for rights falling within the ambit of the Convention which go beyond the minimum guarantees set out therein, those supplementary rights are applied fairly and consistently to all those within its jurisdiction unless a difference of treatment is objectively justified’. Consistently with that purpose, it added at para 61 that ‘while … there may be circumstances in which it is not appropriate to categorise an impugned difference of treatment as one made between groups of people, any exception to the protection offered by art 14 of the Convention should be narrowly construed.’ Accordingly, cases where the court has found the ‘status’ requirement not to be satisfied are few and far between”.

Turning to the question of justification, Lord Reed addressed as “three preliminary issues of general importance”. The first concerned the question “whether it is appropriate for our domestic courts to determine whether the United Kingdom has violated its obligations under unincorporated international law when considering whether a difference in treatment is justified under the Human Rights Act” (§73). He disagreed with the parties that a “primary question for the court to decide [was] … whether, by introducing the limitation on entitlement to child tax credit, the United Kingdom has breached its obligations under the UNCRC”, stating that this was not the effect of the decision on in DA [2019] UKSC 21; [2019] 1 WLR 3289. At §81, having refuted the suggestion that international treaty provisions had direct effect in domestic law, Lord Reed referred to the decision in Demir v Turkey (Application no. 34503/97) (2008) 48 EHRR 54, in which the Grand Chamber “took account of international instruments which recognised the right of civil servants to form and join trade unions in concluding that civil servants were not “members … of the administration of the state” for this purpose”. At §82 his Lordship cited the statement in Neulinger v Switzerland (Application no. 41615/07) (2010) 54 EHRR 31 §131, that “[t]he Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law … as indicated in art 31(3)(c) of the Vienna Convention on the Law of Treaties” and “took account of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the UNCRC, when determining the obligations imposed on states by art 8 of the ECHR in the context of international child abduction…” He went on to point out at §83 that the ECtHR “has not treated provisions of international treaties as if they were directly incorporated into the Convention itself, so as to impose specific obligations on the contracting states via the Convention. Nor does it refer to international materials for the purpose of determining whether contracting states have complied with their obligations under unincorporated international treaties, recognising that it possesses no jurisdiction to make such a determination. Even where rules of international law are incorporated into domestic law, the court has said that its role ‘is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention’” (citing Neulinger, §100). And at §84 “There is, accordingly, no basis in the case law of the European court, as taken into account under the Human Rights Act, for any departure from the rule that our domestic courts cannot determine whether this country has violated its obligations under unincorporated international treaties”.

At §80 Lord Reed stated that “a misunderstanding has appeared in some recent judgments of this court” to the effect that domestic courts should approach the question of justification by applying the provisions of the UNCRC, or by deciding whether, in adopting the measure in question, the national authorities complied with their obligations under the UNCRC” (citing Lord Carnwath in R (SG 7& Ors)) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 §§117-119; Lord Wilson’s majority judgment, albeit obiter on this issue, in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 §44; Lady Hale (similarly for the majority but obiter) in In re McLaughlin [2018] UKSC 48; [2018] 1 WLR 4250 §40 and “most significant[ly]” in DA; [2019] 1 WLR 3289 §78:

[95] In the course of his judgment, Lord Wilson, with whom Lord Hodge and Lord Hughes agreed, identified the critical question, in relation to justification under art 14 read together with art 8, as being whether the reasons for the differential treatment were “manifestly without reasonable foundation” (para 65). He then considered whether the Government had complied with the requirement in art 3.1 of the UNCRC that the best interests of children be a primary consideration, on the basis that “a foundation for the decision [not to exempt the relevant category of children from the cap] not made in substantial compliance with art 3.1 might well be manifestly unreasonable” (para 78). In approaching the matter in that way, he again relied on the obiter dicta of Lord Carnwath, and the dissenting judgments of Lady Hale and Lord Kerr, in SG. In the event, he concluded at para 87 that there had been no breach of the UNCRC, finding that the Government had considered the best interests of children before introducing the legislation in question. In the next section of his judgment, Lord Wilson stated (para 88) that he was “also” driven to conclude that the Government’s decision was not “manifestly without reasonable foundation”: the Government’s belief as to the beneficial impact of the measure on children generally was not challenged, and discretionary payments were available in cases of particular hardship. Lord Carnwath agreed that “the ‘best interests’ principle under art 3.1 [of the UNCRC] is potentially relevant” (para 102), in a judgment with which Lord Hughes and I expressed agreement.

[96] Given the cautious language used by Lord Wilson when discussing the significance of non-compliance with the UNCRC (“might well be manifestly unreasonable”), and the explicit basing of the decision on the Government’s belief about the beneficial effects of its policy, and on the availability of discretionary payments, it does not appear to me that Lord Wilson’s remarks about the UNCRC formed part of the essential grounds of the decision. In the words of Sir Frederick Pollock, cited by Lord Denning in Close v Steel Co of Wales Ltd [1962] AC 367, 388-389:

“Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

Lord Reed went on to consider the manifestly without reasonable foundation test, pointing out at §97 that the approach set out by the Supreme Court in Humphreys v Revenue and Customs Comrs [2012] UKSC 18, [2012] 1 WLR 1545, and applied in a number of subsequent cases since, had been called into question by the decision of the First Section of the European court in JD and A v United Kingdom (Applications nos. 32949/17 and 34614/17) [2020] HLR 5 (“JD”). At §98- Lord Reed summarised the approach of the ECtHR as set out in  Carson v UK, §61 (“whether there is an ‘objective and reasonable’ justification for a difference in treatment is to be judged by whether it pursues a ‘legitimate aim’ and there is a ‘reasonable relationship of proportionality’ between the aim and the means employed to achieve it), referring to the “well settled” position that the margin of appreciation available to states “will vary according to the circumstances, the subject matter and the background.” Having pointed out at §99 that the ECtHR “has not itself provided, in its judgments, a systematic analysis of relevant factors or an explanation of how they interact” he stated that “patterns emerge, and inferences can be drawn, from a survey of its case law, as I shall explain. It is doubtful whether the nuanced nature of the approach which it follows can be comprehensively described by any general rule. It is more useful to think of there being a range of factors which tend to heighten, or lower, the intensity of review. In any given case, a number of these factors may be present, possibly pulling in different directions, and the court has to take them all into account in order to make an overall assessment. The case law indicates, however, that some factors have greater weight than others:

[100] One particularly important factor is the ground of the difference in treatment. In principle, and all other things being equal, the court usually applies a strict review to the reasons advanced in justification of a difference in treatment based on what it has sometimes called “suspect” grounds of discrimination. However, these grounds form a somewhat inexact category, which has developed in the case law over time, and is capable of further development by the European court. Furthermore, a much less intense review may be applied even in relation to some so-called suspect grounds where other factors are present which render a strict approach inappropriate, as some of the cases to be discussed will demonstrate.

[101] The court originally developed a requirement that “very weighty reasons” must be shown to justify a difference in treatment based on sex or gender, on the basis that the advancement of gender equality is a major goal in the contracting states: see Abdulaziz v United Kingdom [Application no. 9214/80; 9473/81; 9474/81] (1985) 7 EHRR 471, para 78. This approach was soon applied in cases concerning entitlement to welfare benefits: see, for example, Van Raalte v Netherlands (1997) 24 EHRR 503, para 39.

[102] On the other hand, while continuing to state that ‘very weighty reasons’ are required for a difference in treatment on grounds of sex to be regarded as compatible with the Convention, the court has found there to be no violation where a state has been acting to correct a historical inequality between the sexes and the pace of change has been reasonable in the context of the contracting states as a whole [citing Petrovic [Application 156/1996/775/976] (1998) 33 EHRR 14,  Markin v Russia [Application no. 30078/06] (2012) 56 EHRR 8]…

[103] These cases illustrate three points of wider significance. The first is that the court’s statements that ‘very weighty reasons’ are required to justify a difference in treatment on a particular ground do not necessarily exclude the possibility that a relatively wide margin of appreciation, and a correspondingly less intense standard of review, may nevertheless be appropriate in particular circumstances, as for example where historical inequalities are being addressed in pace with changes in social attitudes. The second is that the court’s case law evolves in the light of the development of common standards among the contracting states. The third is that the court has moved over time towards explaining the need for weighty reasons to justify certain grounds of differences in treatment in terms of the link between those grounds and problems of stereotyping, stigma and social exclusion, which prevent participation in society on an equal footing to others. It is to be noted that this approach differs from that suggested by Lord Walker of Gestingthorpe in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63,  [2009] AC 311, para 5, which focused instead on the relationship between the characteristic in question and the development of an individual’s personality.

[104] The court next required “very weighty reasons” in cases concerned with differences in treatment based on birth status, referring to a consensus in the legislation of the contracting states: Inze v Austria [Application no. 8695/79] (1987) 10 EHRR 394, para 41…

[105] The ‘very weighty reasons’ requirement was next extended to differences in treatment based exclusively on nationality: Gaygusuz v Austria [Application 39/1995/545/631] (1996) 23 EHRR 364, para 42. That case, like many later cases concerned with differential treatment on the ground of nationality, was concerned with entitlement to welfare benefits, but predated the formulation of the ‘manifestly without reasonable foundation’ approach in the latter context. It will be necessary to consider later some more recent cases of the same kind.

Lord Reed went on at §106 to state that even in cases of discrimination based exclusively nationality a wider margin of appreciation was sometimes applied (citing MS v Germany (Application No 44770/98) (unreported) given 20 January 2000), which concerned extradition and Ponomaryov (Application no. 5335/05) (2011) 59 EHRR 20, §54 in which the ECtHR accepted that a state might be able to justify discrimination between different categories of aliens residing in its territory so as to comply with EU law. He reached similar conclusions in relation to sexual orientation discrimination at §107, citing EB v France [Application no. 43546/02)] (2008) 47 EHRR 21, §58 and Schalk v Austria [Application no. 30141/04] (2010) 53 EHRR 2;  ethnicity at §108 (citing Biao v Denmark (Application no. 38590/10) (2016) 64 EHRR 1, §§93 and 94;  and religion/ belief at §§109-110, citing  Vojnity v Hungary (Application No 29617/07) [2013] 2 FCR 495, Eweida v United Kingdom and Ladele v UK (respectively Applications nos. 48420/10 and 51671/10, (2013) 57 EHRR 8).

At §112 Lord Reed observed that, disability having been accepted as a suspect ground (citing Glor v Switzerland (Application No 13444/04), 30 April 2009, §84) the ECtHR had in Guberina v Croatia (Application no. 23682/13)(2016) 66 EHRR 11 “noted that, on the one hand, a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy, including measures in the area of taxation” but gone on to state that “… if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the state’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs.” (§73).

[114] The counterpart of the strict approach taken, other things being equal, to differences in treatment on the grounds discussed above, is less strict scrutiny, other things being equal, of differences in treatment on other grounds, such as age … immigration status … prisoner status … and marital status … However, as indicated in para 99 above, the case law does not support a straightforwardly binary approach, as a range of factors may be relevant in particular circumstances. For example, although age has not been treated as a “suspect” ground, the best interests of children have been treated by the European court as an important factor in assessing proportionality under art 14 (see, for example, para 86 above), reflecting the fact that individuals in that age group have particular needs and vulnerabilities.

[115] In summary, therefore, the court’s approach to justification generally is a matter of some complexity, as a number of factors affecting the width of the margin of appreciation can arise from ‘the circumstances, the subject matter and its background’. Notwithstanding that complexity, some general points can be identified. 

(1) One is that the court distinguishes between differences of treatment on certain grounds, discussed in paras 100-113 above, which for the reasons explained are regarded as especially serious and therefore call, in principle, for a strict test of justification (or, in the case of differences in treatment on the ground of race or ethnic origin, have been said to be incapable of justification), and differences of treatment on other grounds, which are in principle the subject of less intensive review.

(2) Another, repeated in many of the judgments already cited, sometimes alongside a statement that ‘very weighty reasons’ must be shown, is that a wide margin is usually allowed to the state when it comes to general measures of economic or social strategy… In some of these cases, the width of the margin of appreciation available in principle was reflected in the statement that the court “will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’”…

(3) A third is that the width of the margin of appreciation can be affected to a considerable extent by the existence, or absence, of common standards among the contracting states…

(4) A fourth, linked to the third, is that a wide margin of appreciation is in principle available, even where there is differential treatment based on one of the so-called suspect grounds, where the state is taking steps to eliminate a historical inequality over a transitional period. Similarly, in areas of evolving rights, where there is no established consensus, a wide margin has been allowed in the timing of legislative changes...

(5) Finally, there may be a wide variety of other factors which bear on the width of the margin of appreciation in particular circumstances. The point is illustrated by such cases as MS v GermanyPonomaryov and Eweida v United Kingdom.

At §116 Lord Reed concluded that “more than one of those points may be relevant in the circumstances of a particular case, and, unless one factor is of overriding significance, it is then necessary for the court to make a balanced overall assessment.” He went on at §117 to observe that the ECtHR’s approach in cases in which it had adopted the “manifestly without reasonable foundation” formulation to justification “is consistent with the foregoing points”, pointing out that the phrase “seems first to have appeared” in an Article 14 context in the Grand Chamber’s judgment in Stec v UK (Applications nos. 65731/01 and 65900/01) (2006) 43 EHRR 74, which concerned ameliorative action intended to eliminate sex discrimination in pensionable ages, and in which at §53 the Grand Chamber had referred both to “the ‘general’ rule that ‘very weighty reasons’ are required to justify discrimination on the ground of sex, and on the other hand, the wide margin “usually” allowed in relation to general measures of economic or social strategy”. At §§121-125 Lord Reed referred to the subsequent ECtHR cases in which the “manifestly without reasonable foundation” formulation had been adopted by the ECtHR in “suspect ground’ cases, contrasting these at §125 with cases concerning “non-suspect grounds” such as Carson in which the Grand Chamber “made no reference to ‘very weighty reasons’ [and] underlined that, in the context of welfare benefits and pensions, it will look at the compatibility of the system overall, without giving undue weight to the circumstances of the individual, since welfare systems, to be workable, have to deal in broad categorisations which will inevitably affect some people more prejudicially than others” (and referring similarly at §126 to the decisions in  Stummer (Application no. 37452/02) (2011) 54 EHRR 11, Tarkoev v Estonia (Application No 14480/08), 4 November 2010, Bah v United Kingdom  B v United Kingdom (Application No 36571/06) (unreported), 14 February 2012).

[127] Two more recent cases should also be noted. First, the judgment in Vrountou v Cyprus [Application no. 33631/06] (2015) 65 EHRR 31 was expressed in terms which might be thought to suggest a stricter approach, in the context of welfare benefits, to differences of treatment on the ground of sex. The case concerned the provision of housing assistance to the children of men, but not women, displaced by the Turkish invasion of Cyprus. The respondent government argued that the case fell within the scope of the ‘manifestly without reasonable foundation’ approach. However, although the court accepted that the case concerned welfare benefits (paras 63 and 66), it did not refer to the wide margin of appreciation usually allowed in relation to general measures of economic or social policy, or repeat the ‘manifestly without reasonable foundation’ formulation. Instead, it said that ‘[i]n cases where the difference in treatment is on grounds of sex, the general principles which apply in determining this question of justification, were restated by the Grand Chamber in Markin’ (cited at para 102 above: it was not a welfare benefit case). Those principles included the statement that the scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, and that ‘very weighty reasons’ would have to be put forward to justify a difference in treatment on the ground of sex (para 75).

[128] Secondly, the Grand Chamber judgment in Fábián v Hungary [Application no. 78117/13] (2017) 66 EHRR 26 modified the standard statement taken from para 52 of Stec … repeated time and again in the case law. The case concerned a difference in treatment between civil servants and private sector employees under the state pension scheme. That was not, of course, a ‘suspect’ ground, and the court made no reference to the need for ‘very weighty reasons’. However, after repeating what had been said in para 52 of Stec from ‘a wide margin’ to ‘manifestly without reasonable foundation’, the Grand Chamber added (para 115, omitting most of the citations):

“Any measures taken on such grounds [viz, social or economic grounds], including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non-discriminatory manner and comply with the requirements of proportionality. In any case, irrespective of the scope of the state’s margin of appreciation, the final decision as to the observance of the Convention’s requirements rests with the court (see, inter alia, Markin, para 126).”

That form of words, adapted as necessary to the facts of the particular case, has been repeated in more recent cases. It may be thought to underline that the ‘manifestly without reasonable foundation’ formulation is not to be taken as a conclusive account of the assessment of compatibility with art 14.

At §§129-130 Lord Reed suggested that, from Stec onwards, “cases concerned with welfare benefits and pensions can be seen to have generally followed a consistent approach”, namely that (1) “the court has consistently differentiated between cases where ‘suspect’ and ‘non-suspect’ grounds of differential treatment have been in issue”; (2) in the latter cases “the court has almost always recognised the general appropriateness of a wide margin in relation to general measures of economic or social strategy, reflected in the context of welfare benefits, pensions and social housing by the ‘manifestly without reasonable foundation’ formulation; the Court also pays regard to (3) “the relevance of the existence or absence of common standards” and (4) “of the measure in question forming part of arrangements intended to eliminate an historical inequality over time” as well as to (5) other circumstances such as, in Muñoz Díaz v Spain (Application no. 49151/07) (2009) 50 EHRR 49, the fact that the domestic authorities had created a legitimate expectation that the applicant would receive favourable treatment.

[131] The remaining point which can be drawn from the case law up to this point is how the court has balanced different factors when they pull in different directions: notably, where the need for ‘very weighty reasons’ co-exists with the generally wide margin of appreciation described by the “manifestly without reasonable foundation” formulation. In Luczak [v Poland (Application No 77782/01) unreported, 27 November 2007], the court concluded that the government had not adduced a reasonable and objective justification, ‘even having regard to their margin of appreciation in the area of social security’ (para 59). In Andrejeva [v Latvia (Application no. 55707/00) (2009) 51 EHRR 28], the court concluded, ‘while being mindful of the broad margin of appreciation enjoyed by the state in the field of social security’, that there had been a violation (para 89). In British Gurkha [Welfare Society v United Kingdom (Application no. 44818/11) (2016) 64 EHRR 11] the court stated that ‘in considering whether such “very weighty reasons” exist, the court must be mindful of the wide margin usually allowed to the state under the Convention when it comes to general measures of economic or social strategy’ (para 81). It appears, therefore, that in cases involving ‘suspect’ grounds in the field of welfare benefits and pensions, the determinative factor has generally been whether ‘very weighty reasons’ have been shown, but that the court has taken account of the wide margin generally applicable in that field when making that assessment. Whether a measure has formed part of a scheme intended to address historical inequalities, and the presence or absence of common standards among the contracting states, have also been important factors.

At §131 Lord Reed turned to the decision of the ECtHR in JD and A v United Kingdom (Applications nos. 32949/17 and 34614/17) [2020] HLR 5, referring to the fact that the “the decision has been selected by the Bureau of the court (comprising the President, Vice-Presidents and Section Presidents) as a ‘key case’ following a proposal by the Jurisconsult, whose role is to monitor the case law and promote its consistency”. The case, as Lord Reed pointed out, had followed the Supreme Court’s decision in R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550, the ECtHR dismissing one of the two complaints (JD) but upholding the other (A) by a majority. At §133 he set out the “material passage in the judgment of the majority” in full:

“87. In the context of art 1 of Protocol 1 alone, the court has often held that in matters concerning, for example, general measures of economic or social strategy, the states usually enjoy a wide margin of appreciation under the Convention (see Fábián, para 115; Hämäläinen v Finland, [Application no. 37359/09] (2014) 37 BHRC 55, para 109; Andrejeva, para 83). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.

88. However, as the court has stressed in the context of art 14 in conjunction with art 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, para 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the court has limited its acceptance to respect the legislature’s policy choice as not ‘manifestly without reasonable foundation’ to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec, paras 61-66; Runkee, paras 40-41 and British Gurkha Welfare Society v United Kingdom, para 81).

89. Outside the context of transitional measures designed to correct historic inequalities, the court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced (see Glor v Switzerland, para 84), and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified (see Guberina, para 73). The court has also considered that as the advancement of gender equality is today a major goal in the member states of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (Markin v Russia, para 127).”

The ECtHR had required at §97 “very weighty reasons” to justify the impugned measure in respect of the applicants. At §135 Lord Reed rejected the suggestion in §88 of JD that the ECtHR had applied the “manifestly without reasonable foundation” approach only to cases of positive (ameliorative) action, though he accepted that Stec,Runkee and  British Gurkha had involved such action, referring to other cases including the Grand Chamber decisions in Carson and Stummer as inconsistent with it, but pointing out that “the court in JD will have known that”. At §136 he stated that “disability and gender are both ‘suspect’ grounds for a difference in treatment, and therefore require to be justified by ‘very strong reasons'” and acknowledged that §89 of the JD decision:

“departs from the court’s previous judgments concerning art 14 in the field of social security (a field with which GlorGuberina and Markin were not concerned), even those concerned with differences in treatment on a suspect ground (apart from some isolated examples such as Vrountou), in omitting any mention of the wide margin, signified by the “manifestly without reasonable foundation” formulation, which is usually enjoyed by the national authorities in that field. As I have explained, even in the context of cases concerned with ‘suspect’ grounds, including gender, the court has in the past stated that there is in principle a wide margin applicable in the field of welfare benefits, reflected in the “manifestly without reasonable foundation” approach. That is true not only of cases concerned with transitional measures, such as StecRunkee and British Gurkha, but also of cases which were not concerned with such measures, such as ZemanLuczakAndrejevaAndrle and Tomás. It has balanced the factors pointing towards a strict standard of review, and those pointing towards a wider margin, as I explained in para 130 above under reference to LuczakAndrejeva and British Gurkha.”

At §137 Lord Reed rejected the argument that the reasoning in JD established “a simple rule” that “complaints of discrimination on ‘suspect’ grounds fall outside the scope of the wide margin and ‘manifestly without reasonable foundation’ approach usually accorded in the field of welfare benefits, unless the case concerns ‘transitional measures’”, stating that “would represent a significant modification of a substantial body of case law, as I have explained” and referring at §138 to the recent decision of the ECtHR in Jurčič v Croatia (Application no. 54711/15[2021] IRLR 511, which concerned sex discrimination in relation to welfare benefits, and in which the court had “reiterated the ‘manifestly without reasonable foundation” standard ” (§64) before going on at §65 to state that “the advancement of the equality of the sexes is a major goal in the member states of the Council of Europe. This means that, outside the context of transitional measures designed to correct historic inequalities [citing JD v United Kingdom, §89], very weighty reasons would have to be advanced before a difference in treatment on the grounds of sex could be regarded as being compatible with the Convention … Consequently, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances.” Lord Reed concluded that this reasoning was “broadly in line with the court’s case law prior to JD, and treats that case as establishing merely that cases concerning transitional measures designed to correct historical inequalities form an exception to a general principle that, notwithstanding that a wide margin, reflected by the ‘manifestly without reasonable foundation’ formulation, is generally appropriate in the field of welfare benefits, a stricter approach, calling for ‘very weighty reasons’, is appropriate where a difference in treatment is based on sex” (§139). At §140 Lord Reed took further comfort from the decision in Yocheva and Ganeva v Bulgaria (Application Nos 18592/15 and 43863/15), 11 May 2021, in which the Court “reiterated the ‘manifestly without reasonable foundation’ standard” at §101 and then “required very weighty reasons to justify the difference in treatment”. By contrast (§141) the Court had continued to apply “the ‘manifestly without reasonable foundation’ formula without qualification, in cases concerned with differences in treatment on non-suspect grounds” (citing Popovic v Serbia (Applications nos. 26944/13 and 3 others) (2020) 71 EHRR 29.

[142] In summary, the European court has generally adopted a nuanced approach, which can be understood as applying certain general principles, but which enables account to be taken of a range of factors which may be relevant in particular circumstances, so that a balanced overall assessment can be reached. As I have explained, there is not a mechanical rule that the judgment of the domestic authorities will be respected unless it is ‘manifestly without reasonable foundation’. The general principle that the national authorities enjoy a wide margin of appreciation in the field of welfare benefits and pensions forms an important element of the court’s approach, but its application to particular facts can be greatly affected by other principles which may also be relevant, and of course by the facts of the particular case. Indeed, this approach is not confined to cases concerned with art 14, but can be seen in other contexts where the state generally enjoys the wide margin of appreciation signified by the ‘manifestly without reasonable foundation’ formula, but where other factors may indicate a narrower margin of appreciation, and the court accordingly balances the relevant factors: see, for a recent example, LB v Hungary (2021) 72 EHRR 28, paras 48-50. In the context of art 14, the fact that a difference in treatment is based on a “suspect” ground is particularly significant. The recent cases of JDJurčič and Yocheva and Ganeva, like many earlier cases, indicate the general need for strict scrutiny, focused on the requirement for very weighty reasons, where the difference in treatment is based on a suspect ground such as sex or birth outside marriage, unless the issue concerns the timing of reform designed to address historical inequalities, where a wider margin is likely to be appropriate.

At §§143 -156 Lord Reed set out the approach of the domestic courts, acknowledging at §149 that this had diverged from that of the ECtHR “as it now appears” starting with  Humphreys [2012] UKSC 18; [2012] 1 WLR 1545, in which the “reasoning on justification, following the submissions made, did not reflect the Strasbourg jurisprudence entirely correctly” (§151) because “the ‘manifestly without reasonable foundation’ formulation, as used in the Strasbourg judgments, does not express a test, in the sense of a requirement whose satisfaction or non- satisfaction will in itself necessarily be determinative of the outcome [but].. phrase indicates the width of the margin of appreciation, and hence the intensity of review, which is in principle appropriate in the field of welfare benefits, other things being equal” and (§151)the reasoning departed from the Strasbourg approach in its interpretation of Stec and Runkee, and its consequent rejection of a distinction between ‘suspect’ and other grounds of differences in treatment in the field of welfare benefits …  The ‘manifestly without reasonable foundation’ approach does not, therefore, replace or supersede the requirement for “very weighty reasons” where “suspect” grounds are in issue. Instead, the degree of deference usually appropriate in relation to social or economic policy choices may have to be taken into account in assessing whether ‘very weighty reasons’ have been shown”. Lord Reed also referred to the decisions of the Supreme Court in R (SG & Ors)) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449, §154) and in MA [2016] UKSC 58 [2016] 1 WLR 4550 in which (§155) “a wholesale attack was mounted upon the ‘manifestly without reasonable foundation test’, but was rejected… That decision was followed by complaints by the unsuccessful appellants to the European court, and the judgment in JD.” He referred also at §156 to the decision in R (DA & Ors) v Secretary of State for Works and Pensions [2019UKSC 21, [2020] 1 All ER 573, in which the “court expressed its adherence to ‘the “manifestly without reasonable foundation” test” in particularly strict terms” (citing Lord Wilson at §65 that “in relation to the Government’s need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it” and observing that “As the case did not concern “suspect” grounds of differential treatment, the difference between that reasoning and the more nuanced reasoning of the European court did not affect the court’s decision. Lady Hale presciently observed at para 152 that ‘the court may well have to return to this difficult question”’.

At §157 Lord Reed concluded that he was “not persuaded by the argument, based on JD, that the ‘manifestly without reasonable foundation’ formulation can never have any part to play, even in relation to differences of treatment on ‘suspect’ grounds, outside the context of transitional measures” but he went on to accept that:

“[158] … it is appropriate that the approach which this court has adopted since Humphreys should be modified in order to reflect the nuanced nature of the judgment which is required, following the jurisprudence of the European court. In the light of that jurisprudence as it currently stands, it remains the position that a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation. Nevertheless, the intensity of the court’s scrutiny can be influenced by a wide range of factors, depending on the circumstances of the particular case, as indeed it would be if the court were applying the domestic test of reasonableness rather than the Convention test of proportionality. In particular, very weighty reasons will usually have to be shown, and the intensity of review will usually be correspondingly high, if a difference in treatment on a ‘suspect’ ground is to be justified. Those grounds, as currently recognised, are discussed in paras 101-113 above; but, as I have explained, they may develop over time as the approach of the European court evolves. But other factors can sometimes lower the intensity of review even where a suspect ground is in issue, as cases such as SchalkEweida and Tomás illustrate, besides the cases concerned with ‘transitional measures’, such as StecRunkee and British Gurkha. Equally, even where there is no “suspect” ground, there may be factors which call for a stricter standard of review than might otherwise be necessary, such as the impact of a measure on the best interests of children.

[159] It is therefore important to avoid a mechanical approach to these matters, based simply on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant. As was recognised in Ghaidan v Godin- Mendoza [2004] UKHL 30; [2004] 2 AC 557 and R (RJM) v Secretary of State for Work and Pensions … the courts should generally be very slow to intervene in areas of social and economic policy such as housing and social security; but, as a general rule, differential treatment on grounds such as sex or race nevertheless requires cogent justification…

[161] … rather than trying to arrive at a precise definition of the ambit of the ‘manifestly without reasonable foundation’ formulation, it is more fruitful to focus on the question whether a wide margin of judgment is appropriate in the light of the circumstances of the case. The ordinary approach to proportionality gives appropriate weight to the judgment of the primary decision-maker: a degree of weight which will normally be substantial in fields such as economic and social policy, national security, penal policy, and matters raising sensitive moral or ethical issues. It follows, as the Court of Appeal noted in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542 [2021] 1 WLR 1151, and R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199, [2021] ICR 236 [see previous post] that the ordinary approach to proportionality will accord the same margin to the decision-maker as the ‘manifestly without reasonable foundation’ formulation in circumstances where a particularly wide margin is appropriate”.

Lord Reed went on at §162 to point out that most legislation discriminates in some form and “is capable of challenge under art 14”, the dissenting judges in JD having observed that Article 14 challenges had “become increasingly common in the United Kingdom” and were “usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign”. He cited the warnings issued by Judges Pejchal and Wojtyczek about the importance of maintaining a separation between the judicial and political spheres. At §§163 to 185 he considered the proper use of Parliamentary materials in connection with the HRA, concluding at §183 that “the courts should go no further than ascertaining whether matters relevant to compatibility were raised during the legislative process” and (§184) “must not treat the absence or poverty of debate in Parliament as a reason supporting a finding of incompatibility”.

Returning to the facts of the instant case, Lord Reed accepted at §188 that “very weighty reasons have to be put forward before a difference in treatment on the ground of gender can be regarded as compatible with the Convention”, by contrast (§189) with the position in the US. Having reminded himself that the “mischiefs” targeted by the legislation under challenge were (1) an excessively high level of public spending on welfare benefits, resulting in a large fiscal deficit” challenge to which was “a major priority of the Government’s macro-economic policy at the time, and had been a manifesto commitment at the 2015 General Election”; and (2) “persons in receipt of child tax credits were guaranteed a rise in income for every additional child they might choose to have, without limit [which] was regarded as unfair to persons supporting themselves solely through work, and as an unreasonable burden to impose on the taxpayers who pay for the scheme” Lord Reed accepted at §192 that “the objective of protecting the economic well-being of the country, that is undoubtedly a legitimate aim for the purposes of the Convention”. As to whether the legislation was proportionate, Lord Reed stated that the main criticisms made of it from a sex equality perspective were that (§195) “it was inevitable, if the aims of the legislation were to be achieved, that there would be a greater numerical impact on women than on men … because …  women constitute 90% of single parents bringing up children, as well as 50% of parents jointly bringing up children … [and] will be disproportionately affected by legislation affecting parents bringing up children, including legislation making changes to child-related benefits paid to parents”.

[197] In short, more women than men are affected because more women than men are bringing up children. That is an objective fact. There is no suggestion that that is itself the result of discrimination on the ground of sex.

[198] The differential impact on women is not, therefore, a special feature of this measure. It is inherent in any general measure which limits expenditure on child- related benefits. Indeed, even if Parliament had chosen to limit spending on benefits across the board rather than focusing on child tax credit, that approach would have had a greater differential impact on women, according to the Government’s uncontradicted evidence: see the judgment of the Court of Appeal, para 127. The appellants have not suggested any way in which the legitimate aims of the measure might have been achieved without affecting a greater number of women than men. The judge, and the Court of Appeal, discussed the possibility that single parents might have been excluded from the scope of the limitation (with, presumably, a correspondingly stricter limitation on child tax credit paid to couples). As they concluded, however, to have treated single parents more favourably than couples in identical financial circumstances would itself have encountered obvious objections under art 14. In addition, it would have contradicted the second aim of the legislation, namely to address the unfairness and unreasonableness of a situation in which recipients of child tax credits were guaranteed a rise in income for every additional child they might choose to have, without limit.

[199] Once it is understood that the legitimate aims of the measure could not be achieved without a disproportionate impact on women, arising from the demographic fact that they form the majority of parents bringing up children, the only remaining question which can be asked, in relation to proportionality, is whether the inevitable impact on women outweighed the importance of achieving the aims pursued. Parliament decided that the importance of the objectives pursued by the measure justified its enactment, notwithstanding its greater impact on women. I see no basis on which this court could properly take a different view.

Turning to the discrimination against children living in larger families Lord Reed reiterated at §202 that “the objective of protecting the economic well-being of the country is undoubtedly a legitimate aim for the purposes of the Convention” as was “the objective of ensuring that a benefits system is fair and reasonable must also be legitimate. The benefits system is sometimes described as an expression of social solidarity: the duty of any community to help those of its members who are in need. The system must be fair and reasonable (not least in the case of non-contributory benefits), if that solidarity is not to be weakened”. Lord Reed pointed out at §203 that the ground of distinction in this case was not a suspect one and that, accordingly, “Parliament’s assessment that the difference in treatment is justified should be treated by the courts with the greatest respect [though] since the measure affects children, the courts also have to bear in mind the significance of their best interests to the assessment of proportionality”. He accepted at §204 that here was “clearly a rational connection between the objectives pursued by the legislation (to achieve savings in public expenditure and, secondarily, to ensure a fair and reasonable scheme by limiting the extent to which recipients of child tax credit are guaranteed a rise in income if they have additional children) and Parliament’s decision to limit entitlement to the individual element of child tax credit to the amount payable in respect of two children”.

Lord Reed categorised as “miss[ing] the point” the objection that people who were not reliant on welfare generally had higher incomes than those receiving child tax credit, and could better afford to have additional children, referring at §205 to the concern expressed prior to the imposition of the limit on child tax credit that those “not in receipt of child tax credit had to make decisions about the size of their families in the knowledge that they would have to fund the cost of supporting additional children from their own resources, whereas persons in receipt of child tax credit were provided out of public expenditure with a guaranteed increase in their income for every additional child that they chose to have, without limit. While he acknowledged at §206 that people who chose to have more than two children at a time when they “reasonably believe[d] that they will be able to support the child out of their own resources, only for some misfortune to render them dependent on welfare benefits” had access to a “variety of benefits payable to families with children which provide protection against risks of that kind” and that Parliament was the best judge of “[h]ow far the welfare system should go to protect families against the vicissitudes of life”. It was the case that some pregnancies were unplanned but an exception existed for pregnancies resulting from non-consensual sex and Lord Reed questioned the practicability of creating an additional exception for unplanned pregnancies.

At §207 Lord Reed rejected a “best interests” argument based on obligations imposed by unincorporated international treaties but accepted that “the best interests of the children affected remain relevant to the assessment of proportionality.” Having acknowledged that “the amount of money provided under the scheme for the support of such children is less, per child, than is provided to persons whose number of children is below the limit” he stated that this had been taken into account by Parliament and was not a conclusive argument;

[207] … It might be argued that children’s best interests would always be better served by a more generous benefits system. But Parliament was told that reducing spending on welfare benefits would allow the Government to protect other expenditure of benefit to children: on education, childcare and health (para 18 above). Furthermore, the difficult question is not so much what would be in the best interests of children, but the extent to which it is fair, economically desirable and socially acceptable to impose the cost of supporting children, whose parents lack the means to do so themselves, on other members of society. Parliament must have considered that the impact of the limitation upon the interests of the children who would be affected by it was outweighed by the reasons for introducing it.

[208] The assessment of proportionality, therefore, ultimately resolves itself into the question as to whether Parliament made the right judgment. That was at the time, and remains, a question of intense political controversy. It cannot be answered by any process of legal reasoning. There are no legal standards by which a court can decide where the balance should be struck between the interests of children and their parents in receiving support from the state, on the one hand, and the interests of the community as a whole in placing responsibility for the care of children upon their parents, on the other. The answer to such a question can only be determined, in a Parliamentary democracy, through a political process which can take account of the values and views of all sections of society. Democratically elected institutions are in a far better position than the courts to reflect a collective sense of what is fair and affordable, or of where the balance of fairness lies.

[209] That is what happened in this case. The democratic credentials of the measure could not be stronger. It was introduced in Parliament following a General Election, in order to implement a manifesto commitment (para 13 above). It was approved by Parliament, subject to amendments, after a vigorous debate at which the issues raised in these proceedings were fully canvassed, and in which the body supporting the appellants was an active participant (para 185 above). There is no basis, consistent with the separation of powers under our constitution, on which the courts could properly overturn Parliament’s judgment that the measure was an appropriate means of achieving its aims.

 
Claimants: R Drabble QC, T Royston, C Bartlam instructed by the Child Poverty Action Group

Respondents: J Eadie QC, G Ward, Y Vanderman instructed by the Government Legal Department

Intervenor: H Mountfield QC, R Desai instructed by the Equality and Human Rights Commission

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