Case Comment 2: R (SG & Ors) v Secretary of State for Work and Pensions [2015] UKSC 16
13 Monday Apr 2015
Darryl Hutcheson, Matrix Case Comments
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This post first appeared on the Oxford Human Rights Hub Blog on 13 April 2015.
Following on from Paul Scott’s post, this contribution will consider how the Supreme Court in SG dealt with the interests of children in analysing whether the benefits cap was justified (despite its discriminatory impact). The interests of children were specifically raised with reference to article 3(1) of the UN Convention on the Rights of the Child (‘UNCRC’), but the Justices’ reasoning raises broader issues about proportionality in the context of article 14 ECHR.
The majority concluded that the interests of children could not come into the analysis of justification. It was emphasised that the cap’s impact upon a child was the same whether they lived with a single father or a single mother [89]. This reflects a narrow approach to the doctrine of justification. Lord Reed suggested that what had to be justified was ‘the fact that (the measure) affects more women than men’ [89].
The majority’s conclusion was crucial since a (different) majority agreed that children’s interests received inadequate attention in the formulation of the benefits cap.
In dissent, Lady Hale emphasised that in indirect discrimination cases, ‘it is… the measure itself which has to be justified’, rather than the fact that women were disproportionately affected [189]. Accordingly, even if the impact on all children was equal, it was necessary to consider the welfare of children when determining whether the measure ‘can be justified independently of its discriminatory effects’ [224].
Lady Hale is clearly right to say that the measure in question, not the fact of discrimination, has to be justified; otherwise, the respondent would have to argue directly that it was right to treat women worse. However, it is a pity that she did not explain more fully why, in principle,the interests of children were relevant to proportionality – for example, because damaging those interests inhibits the achievement of the legitimate aims or makes the interference more serious.
Lord Kerr (while fully agreeing with Lady Hale’s reasons) did explain why the interests of children were relevant to proportionality. The discriminatory impact at issue was specifically suffered by single parent mothers, whose responsibilities include caring for their children (or, put differently, protecting their children’s interests). The interests of mother and child in relation to the benefits were therefore ‘indissociable’ [266]. Though the logic is appealing, Lord Kerr’s analysis, unlike that of Lady Hale, does not challenge the majority’s narrow approach which considered children’s interests irrelevant to their parents’ rights if those interests were in some way ‘distinct’ [131].
The majority contrasted the case at hand with ECHR cases such as Üner v Netherlands and X v Austria where the ECHR had considered the best interests of the child in determining the proportionality of an interference with parents’ rights under article 8 alone and article 8 combined with article 14. Yet their reasons for distinguishing these cases from SG are (with respect) not wholly convincing. Particularly prominent is the suggested distinction (drawn by Lords Carnwath and Hughes at [131] and [146]) between the child’s interests being affected by an interference with her mother’s right, and the child’s interests forming ‘part of’ a substantive right (such as article 8). However, the ECHR cases draw no such distinction and instead consider children’s interests holistically at the proportionality stage (not only when defining the scope of the substantive right in question).
As to the importance of the interests of the child (if relevant) in the proportionality assessment, Lords Kerr and Carnwath in particular appear to suggest that the measure would be disproportionate solely because it breached article 3(1) UNCRC ([112] and [269] – [270]). The more principled position (which is suggested elsewhere in the judgments of Lords Kerr and Carnwath and of the other Justices) is surely that such a breach is not decisive per sebut should be weighed among all other relevant considerations before a conclusion on proportionality is reached.
As a footnote, the Court’s division in SG is inescapably political. This is reflected in the fact that issues such as the difficulty faced by single parents in finding work and the reasonableness of requiring families to move home were seen so differently by different judges (contrast e.g. Lord Reed at [74] – [75] with Lady Hale at [182] and [206]).
1 comment
Andrew David Thorburn said:
19/06/2015 at 16:09
Just a few passages to try and find some meaning to what lies behind these conventions.
A few lines from International Law, Antonio Cassese, Oxford University Press:
“In addition, the USSR put forward proposals clearly showing that differences existed even in areas where there seemingly was agreement between East and West. Thus, for instance, when the four Great Powers met in San Francisco and discussed the proposal that the UN promote ‘respect for human rights’, the USSR suggested that this should be followed by the words: ‘in particular, the right to work, and the right to education’. The USA and the UK opposed this proposal, on the grounds that if it was specified which rights were to be protected, then others should be added – in particular the right to freedom of information and the freedom of religion.”
p. 353 discussion relating to San Francisco Conference (April – June 1945)
“Briefly, the main points of the socialist ‘doctrine’ were as follows: (1) The UN Charter and later UN documents had led to the emergence of a universal principle by virtue of which all States must respect human rights without distinction of race, sex, language, or religion. To comply with this principle and with the international conventions which spelled it out, States must take the necessary legislative steps at a national level. Once this has been done, respect for human rights was an internal question: it was for the laws of each State to recognize human rights; responsibility for safeguarding these rights rested with the authorities of the State.”
p. 355 discussion on the various phases of human right documentation development.
More from Law of the European Convention of Human Rights, 2nd Edition, Harris, O’Boyle & Warbrick:
“The European Convention on Human Rights was adopted in 1950. It was drafted within the Council of Europe, an international organization that was formed after the Second World War in the course of the first post-war attempt to unify Europe.”
p. 1 1.Background
“As a treaty, the Convention must be interpreted according to international law rules on the interpretation of treaties. These are to be found in the Vienna Convention on the Law of Treaties 1969. The basic rule is that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,. A good example of the use of this rule is the case of Luedicke, Belkacem, and Koc v FRG. There the Court adopted the ‘ordinary meaning’ of the words ‘gratuitement’ and ‘free’ in the two authentic language texts of Article 6(3)(e), which it found ‘not contradicted by the context of the sub-paragraph’ and ‘confirmed by the object and purpose of Article 6’. The terms in the Convention have their ‘ordinary’ meaning. Accordingly words such as ‘degrading’ (Article 3) have been understood in their dictionary sense.
p.5 4. THE INTERPRETATION OF THE CONVENTION, I. The General Approach
This is stated in the The Single European Act, Luxembourg, 17 February 1986:
DETERMINED to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.
[2015] UKSC 16
On appeal from: [2014] EWCA Civ 156
R (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent)
Unincorporated treaties and legitimate expectation
243. In Chundawadra v Immigration Appeal Tribunal [1998] Imm AR 161 it was argued that every citizen had a legitimate expectation that, if the ECHR was relevant to a matter under consideration, the Minister would take it into account when deciding how to exercise his powers. The Court of Appeal refused to accept this argument, holding that it was not appropriate to introduce the Convention into domestic law by the back door in this way.
It does look to me that the UK had opened the front door, that is the only logical conclusion you can draw. If it is not, then everything would have been done in bad faith, which is an impossibility.