The Welfare Reform and Work Act 2016 imposed a limit of two on the number of children born after 6 April 2017 in respect of whom the individual element of child tax credit or universal credit could be claimed. The Appellants, mothers and children affected by the limit, challenged the primary legislation on the basis that it breached their human rights.
The Court of Appeal previously dismissed the appeal. It held that the limit did not engage the appellants’ rights under ECHR art.8 and art.12. The admittedly greater impact of the measure on women and the difference in treatment between families according to whether there were more than two children in the family fell within the ambit of art.14, read with Protocol 1 art.1 and art.8, but the measure pursued legitimate aims and the difference in treatment was not a manifestly disproportionate means of pursuing those aims and was objectively justified.
Today, a panel of 7 Justices of the Supreme Court, in a judgment delivered by Lord Reed, unanimously dismissed the Claimants’ appeal. It largely agreed with the findings of the Court of Appeal set out above. In addition: (a) it emphasised the fundamental constitutional principle that courts could not determine whether the UK was in breach of its obligations under an unincorporated international treaty, such as the UN Convention on the Rights of the Child; (b) it decided that in relation to the proper approach to proportionality under Article 14 ECHR, the “manifestly without reasonable foundation” standard of review as a standalone principle did not fully capture the case law of the European Court of Human Rights and a more nuanced and factoral approach to the margin permitted to Government was called for; and, (c) it considered and emphasised the limitations on the extent to which Parliamentary debates and other Parliamentary material could be used when considering the compatibility of primary legislation with the ECHR, having regard to Parliamentary privilege.
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