Child Actors in Public Law

Tue, 01 Sep 2015

The problem of children in public law and what to do about it unites and then divides the superior legal minds of the Supreme Court.  On 18 March 2015 in case R (SG), Child Poverty Action Group v Secretary of State for Work and Pensions [2015] UKSC 16, the Supreme Court dismissed the public law challenge to the last Government’s benefits cap on Human Rights grounds.

            Lets jump straight in.  This case contains many gems, there is space for only one, but it’s a beauty.  Logic puzzles are especially popular in the broadsheet press.  This is no exception. 

            The Supreme Court split 3-2 behind Lord Reed for the majority and Baroness Hale in the minority over the relevance of child interests to discrimination in public law under the Human Rights Act.  Note there was no claim for discrimination under the Equalities Act 2010.  The claim was for sex discrimination against women under the Convention, contrary to A14 (on discrimination) read with A1P1(on possessions, including benefits).

            The Government conceded the application of the benefits cap indirectly discriminated against women, but it was justified by the imperatives of austerity in accordance with the principle of proportionality.  80-90% of the savings would be lost if child benefits were excluded from the cap.  Children, specifically children in single parent households living in London, are worst affected by the cap and the majority of such households, but not all, are headed by women. 

            The issue for the Supreme Court was whether the imperative of austerity should be weighed in accordance with primary regard for the best interests of children.  For some, the principle of best interests (A3(1) CRC) is a cornerstone of domestic law (Lord Kerr at para 257), but this was a case of sex discrimination against women.  It was not an action brought for discrimination against children generally or even some children living in single parent households.

            There were two majorities in the Supreme Court.  The first held that if the principle of best interests applies, the cap operates unlawfully (Lord Carnwath at para 128).  The second majority held that it does not, and not just in law, but after appealing to logic.  This is the point at which you are invited to give your grey cells a work out. 

            According to Lord Reed:

“[89.] It is true that the benefits which are taken into account when deciding whether the cap has been exceeded include benefits payable to parents by reason of their responsibility for the care of children. It is also true that the differential impact of the measure upon men and women arises from the fact that more women than men take on responsibility for the care of their children when they separate. It is argued that it is therefore unrealistic to distinguish between the rights of women under article 14 read with A1P1, and those of their children under the UNCRC. There is nevertheless a clear distinction. In cases where the cap results in a reduction in the resources available to parents to provide for children in their care, the impact of that reduction upon a child living with a single father is the same as the impact on a child living with a single mother in similar circumstances, or for that matter a child living with both parents. The fact that children are statistically more likely to be living with a single mother than with a single father is unrelated to the question whether the childrens rights under article 3(1) of the UNCRC have been violated. There is no factual or legal relationship between the fact that the cap affects more women than men, on the one hand, and the (assumed) failure of the legislation to give primacy to the best interests of children, on the other. The conclusion that the cap is incompatible with the UNCRC rights of the children affected therefore tells one nothing about whether the fact that it affects more women than men is unjustifiable under article 14 of the ECHR read with A1P1. The contrary view focuses on the question whether the impact of the legislation on children can be justified under article 3(1) of the UNCRC, rather than on the question whether the differential impact of the legislation on men and women can be justified under article 14 read with A1P1, and having concluded that the legislation violates article 3(1) of the UNCRC, mistakenly infers that the difference in the impact on men and women cannot therefore be justified.”

            For Lord Reed, the impact felt by children affected by the cap does not arise from their single parent being a woman or a mother, in other words, because of sex.  So Lord Reed concludes, even if the cap is unfair on single parents with many children, it tell us nothing about whether it is unfair as between men and women.  What is sex discrimination if it is not unfairness between men and women?  Per Lord Reed, what happens to children under the cap is irrelevant to the question whether it unjustifiably discriminates against women.  Lord Hughes agreed without apparent difficulty (para 140).  After some explanation, Lord Carnwath agreed too (para 131).  So regard for the best interests of children is irrelevant to the claim of indirect sex discrimination against women. 

            The foregoing analysis is perhaps recognisable to discrimination lawyers as a form of “reason why test”.  Is the reason why some children are adversely affected by the cap to do with sex i.e. discrimination on a prohibited ground?  If so, this type of reasoning, according to Lady Hale, demonstrates a categorical mistake in the logic of the majority.  How is this?  For beginners, Lady Hale explains the injustice of indirect discrimination:

“[189.] However, it is important to understand that what is needed to justify indirect discrimination is different from what is needed to justify direct discrimination. In direct discrimination, it is necessary to justify treating women differently from men. In indirect discrimination, by definition, women and men are treated in the same way. The measure in question is neutral on its face. It is not (necessarily) targeted at women or intended to treat them less favourably than men. Men also suffer from it. But women are disproportionally affected, either because there are many more of them affected by it than men, or because they will find it harder to comply with it. It is therefore the measure itself which has to be justified, rather than the fact that women are disproportionately affected by it….”

Next Lady Hale examines the cap for fairness.  She points out children lose child benefits meant for their subsistence through no fault of their own.  In other words children under the cap are not treated alike.  Turning to Lord Reed, Lady Hale states:

[224.] There is the further point, most clearly articulated by Lord Reed at para 89 of his judgment, that the children living with lone parent fathers suffer just as much as the children living with lone parent mothers. Their welfare cannot therefore be relevant to justifying the discrimination between them. However, for the reasons explained in para 189 earlier, this point does not arise when the discrimination complained of is indirect rather than direct. It is of the nature of indirect discrimination that the measure in question applies to both men and women. What has to be considered is whether the measure itself, which in this case I take to be the benefit cap as it applies to lone parents, can be justified independently of its discriminatory effects. In considering whether that measure can be justified, I have no doubt at all that it is right, and indeed necessary, to ask whether proper account was taken of the best interests of the children affected by it.”

            Lord Reed apparently confuses direct and indirect discrimination. Take a classic case of indirect discrimination, one which is no longer with us.  It used to be that part-time workers qualified for employment rights after two years whereas full timers did so after one year.  Most part-timers were women.  As such the condition for qualification for employment rights discriminated against women, indirectly.  Sex was not the cause of the difference in treatment, the difference in treatment was caused by the condition for qualification. 

            If the cause of the difference in treatment between men and women in a case of indirect discrimination is not itself to do with sex, Lady Hale asks why should the justice of permitting it to continue, exclude consideration of the negative impacts on children.  After all the positive aspects of the cap, said to reduce the deficit and to incentivise work over benefits, have nothing to do with sex either.                       

            Lady Hale’s reasoning is persuasive, but not to everyone.  You be the judge.  Is it logic or a difference of view?  If it is the latter, what is the price of diversity on the bench?

Article written by Becket Bedford.

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