Supreme Court  UKSC 26,  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 decision of 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.
Court of Appeal: Singh, Rose and Arnold LJJ,  EWCA Civ 618, 12 May 2020
Note that the decision in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 is no longer good law as a result of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see later post).
The standard of justification in Article 14 cases concerning welfare benefits has been fixed by the Supreme Court as being the “manifestly without reasonable foundation” (MWRF) test. Attempts to unseat this on the basis that it is inconsistent with the approach of the ECHR where protected characteristics such as sex or disability are concerned (see eg R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58,  1 WLR 4550) have failed, even the perennially courteous Lord Wilson insisting in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 that, as regards welfare benefits, “the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.” This approach may fall to be revisited in light of the ECtHR decision in JD & A v United Kingdom (Applications nos. 32949/17 and 34614/17)  HLR 5, in which that Court confirmed that the MWRF applies to discrimination challenged under Article 14 and A1P1 only in “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” (such as in Stec v UK (Applications nos. 65731/01 and 65900/01)(2006) 43 EHRR 47). Meanwhile, the decision of the Court of Appeal in TD indicates that even the MWRF test is capable of being breached. Continue reading