There is no basis on which the courts could properly interfere with the decision of Parliament to impose a two child limit on claims for child benefit, the UK Supreme Court has held.

Seven Justices unanimously dismissed an appeal by two women, along with the five children of the first and the three youngest of the second, against decisions of the High Court and Court of Appeal dismissing their proceedings against the Secretary of State for Work and Pensions and others which claimed that the two child limit was incompatible with the European Convention on Human Rights.

The limit was imposed in respect of third or subsequent children born on or after 6 April 2017, subject to exceptions.

The appellants argued that the limit was intended to discourage women receiving child benefit from having more than two children, thereby violating their right to respect for their private and family life, contrary to article 8 of the Convention, and that it also conflicted with their right to marry and found a family, contrary to article 12. However their primary argument was that it was discriminatory contrary to article 14, read with article 8 and/or article 1 of the First Protocol (“A1P1”).

Lord Reed, President of the Court, with whom Lord Hodge, Lady Black, Lord Lloyd-Jones, Lord Kitchin, Lord Sales and Lord Stephens agreed, said in relation to article 8 that that the two child limit was not intended to affect the reproductive choices of women, and did not have such an effect on either of the adult appellants in this case. He also rejected an argument that the two child limit had a damaging effect on the integration of third and subsequent children into their families, and therefore violated their article 8 rights. There was no evidence to support that assertion, and no reason to believe it was true.

Article 12 did not apply in the present case. The adult appellants neither intended to marry nor to found a family with the father of their youngest child. Even if they did, article 12 would not impose a positive obligation on the state to provide the material means which would enable them to found a family.

In relation to the primary argument under article 14, the court accepted that the adult appellants could satisfy the requirements that their complaint fell within the ambit of one or more of the rights guaranteed by the Convention, and that it concerned a difference in treatment, based on a relevant characteristic or status, between persons in analogous or relevantly similar situations.

Their complaint fell within the ambit of article 8, since it related to a benefit designed to facilitate or contribute to family life, and also within the ambit of A1P1, which protected certain proprietary interests, including their entitlement to CTC. It was agreed that the two child limit affected more women than men, and this gave rise to a presumption of discrimination on the ground of sex. 

The court further proceeded on the basis that the child appellants’ complaint also fell within the ambit of article 8. It was not maintained that it fell within the ambit of A1P1, since the children were not entitled to claim child tax credit themselves.

Lord Reed rejected an argument that the two child limit gave rise to direct discrimination between children and adults. Children whose parents received child tax credit were not in a relevantly similar situation to adults who received benefits such as jobseekers’ allowance. Nor was there indirect discrimination arising from the fact that the households affected by the two child limit contained more children than adults. Children and adults were not affected by the two child limit in comparable ways.

However the two child limit did give rise to a relevant difference in treatment between children living in households with more than two children, as compared with children living in households no more than two, contrary to article 14 read with article 8. 

The question then was whether the relevant differences in treatment were justified. Three issues of general importance arose from the parties’ submissions. 

First, it was not appropriate for domestic courts to determine whether the United Kingdom had violated its obligations under unincorporated treaties, such as the United Nations Convention on the Rights of the Child. It was a fundamental principle of our constitutional law that an unincorporated treaty did not form part of the law of the United Kingdom. Neither the Human Rights Act nor the case law of the European Court of Human Rights required domestic courts to depart from that fundamental principle: that court had regard to other elements of international law when considering the terms of the Convention, but did not treat provisions of treaties as if they were directly incorporated into the Convention itself.

Secondly, a low intensity of review was generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions. In other words, the courts would generally accept the judgment of the legislature or the executive that a difference of treatment was appropriate in that field, unless it was manifestly unreasonable. However the intensity of the court’s scrutiny could be influenced by a wide range of factors, depending on the circumstances of the case; in particular, “very weighty reasons” would usually be needed to justify a difference in treatment on grounds such as sex, gender or race.

Thirdly, when considering whether primary legislation was compatible with Convention rights, the will of Parliament had to find expression solely in the legislation which it enacted. Ministerial statements could not be attributed to Parliament or treated as indicative of Parliament’s intention, though such statements, and material placed before Parliament, might be relevant as background information in ascertaining the objective of the legislation and its likely practical impact, as well as in demonstrating that issues bearing on proportionality were considered by Parliament during legislative proceedings. But the proportionality of a statutory measure was not to be judged by the quality of the reasons advanced in support of it in parliamentary debate.

Applying those principles to the present case, the two child limit had an objective and reasonable justification, notwithstanding its greater impact on women. It pursued a legitimate aim: to protect the economic wellbeing of the country by achieving savings in public expenditure and thus contributing to reducing the fiscal deficit. It was inevitable that, if that aim was to be achieved, there would be a disproportionate impact on women, since who made up the greater proportion of parents responsible for bringing up children. Parliament had decided that that impact was outweighed by the importance of achieving its aims, and there is no basis on which the court could properly take a different view.

The difference in treatment was also justifiable in relation to the children. Parliament's objective could only be realised if a limitation on entitlement based on the number of children living in a household were introduced. It took account of the impact on the interests of affected children, and decided that that was outweighed by the reasons for introducing it. The assessment of proportionality therefore ultimately resolved itself into a question as to whether Parliament made the right choice. That was a question of intense political controversy which could not be answered by any process of legal reasoning, and there was no basis, consistent with the separation of powers under our constitution, on which the court could overturn Parliament’s judgment that the two child limit was an appropriate means of achieving its aims.

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