UKSC 16
On appeal from:  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)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 29 and 30 April 2014
Ian Wise QC
(Instructed by Hopkin Murray Beskine Solicitors)
Clive Sheldon QC
Karen Steyn QC
(Instructed by Treasury Solicitor)
|Intervener (Child Poverty Action Group)
Richard Drabble QC
(Instructed by Herbert Smith Freehills LLP)
|Intervener (Shelter Children's Legal Service)
(Instructed by Freshfields Bruckhaus Deringer LLP)
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
The appeal has been argued on the basis that the cap constitutes an interference with the peaceful enjoyment of possessions, within the meaning of A1P1.
"In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."
(1) a difference in treatment,
(2) of persons in relevantly similar positions,
(3) if it does not pursue a legitimate aim, or
(4) if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be realised.
"The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.
The scope of this margin will vary according to the circumstances, the subject matter and the background. A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy.
Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'."
That approach was followed by this court in Humphreys v Revenue and Customs Commissioners  UKSC 18;  1 WLR 1545, where Lady Hale stated at para 22 that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the "manifestly without reasonable foundation" test in the context of welfare benefits.
"The court has established in its case law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. The court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group."
In such a case, it will again be necessary to consider whether the difference in treatment has an objective and reasonable justification, in the light of the aim of the measure and its proportionality as a means of achieving that aim. For example, a rule requiring that employees should be capable of heavy lifting will exclude a higher number of women than men, because of differences in the average bodily strength of the sexes. Whether that difference in treatment has an objective and reasonable justification will depend on whether the rule which results in the difference in treatment has a legitimate aim and is a proportionate means of realising that aim: a test which might be met in employments where it is necessary to lift heavy objects.
"The court observes at the outset that, as with all complaints of alleged discrimination in a welfare or pensions system, it is concerned with the compatibility with article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation. Much is made in the applicants' submissions and in those of the third-party intervener of the extreme financial hardship which may result from the policy . However, the court is not in a position to make an assessment of the effects, if any, on the many thousands in the same position as the applicants and nor should it try to do so. Any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need. the court's role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation."
It is important to bear this in mind in the present case, where much has again been made of the financial hardship which, it is argued, may result from the cap in particular cases. The relevant question, however, is whether the legislation as such unlawfully discriminates between men and women.
The present case
The Welfare Reform Bill
"The UK's existing system of support can trap the poorest families and children in welfare dependency. For many poor children the current system of support delivers little practical change in their long term economic prospects. Many born into the very poorest families will typically spend their entire lives in poverty. The Government wants to fundamentally change the prospects of these children." (para 1(54))
The Welfare Reform Act 2012
"where a single person's or couple's total entitlement to welfare benefits in respect of [a period of a prescribed duration] exceeds the relevant amount, their entitlement is reduced by an amount up to or equalling the excess" (section 96(2)).
The Benefit Cap (Housing Benefit) Regulations 2012
The implementation of the Regulations
The present proceedings
Compatibility with article 14 read with A1P1
Interference with possessions
Article 3(1) of the UNCRC
"Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the United Kingdom by fear that their decisions might be held to be vitiated by an incorrect understanding."
Lord Brown of Eaton-under-Heywood expressed himself more emphatically (para 67):
"It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state's international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue."
The intensity of review
"When a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament's review. This applies with special force to legislative instruments founded on considerations of general policy."
"The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament."
The same is true of questions of economic and political judgment.
(i) Was the Court of Appeal wrong to have declined to decide whether the benefit cap, as formulated in the 2012 Regulations, had an unlawfully disproportionate impact on victims of domestic violence?
(ii) Was the Court of Appeal wrong not to have found that the disproportionate effect of the 2012 Regulations on victims of domestic violence was contrary to article 14 ECHR (read with article 8 and/or article 1 of Protocol 1) and unlawful?
(iii) Was the Court of Appeal wrong to have found that the discriminatory effects of the 2012 Regulations on lone parents were justified and lawful, and not contrary to article 14 (read with article 8 and/or article 1 of Protocol 1)?
(iv) Was the Court of Appeal wrong to have found that the Respondent has complied with his obligation to treat the best interests of children as a primary consideration when implementing the benefit cap scheme?
"In this case there is no dispute that the rights of the adult claimants under A1P1 (the right to peaceful enjoyment of possessions) are affected by a reduction in the benefits paid to them. And although the child claimants have no A1P1 rights themselves, we agree with CPAG's submission that it would be artificial to treat them as strangers to the article 14/A1P1 arguments. The benefits in each case are paid to the mother to enable her both to feed and house herself and to feed and house her children."
I agree. Accordingly, in considering the nature of the admittedly discriminatory effect of the scheme on lone parents, and its alleged justification, the effects on their children must also be taken into account.
"69. The Divisional Court held that, notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence: see Neulinger v Switzerland (2010) 28 BHRC 706, cited by Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department  2 AC 166 at para 21. This has not been challenged by the Secretary of State on this appeal." (para 69)
Whether or not for this reason, issue (iv) was agreed by the Secretary of State in a form which raised directly the issue of compliance with article 3(1), without overtly questioning its legal relevance, or advancing any substantive argument on that issue. In the circumstances it seemed right to proceed on the basis, conceded rather than decided, that the obligations imposed by article 3(1) were matters to be taken into account under the Convention on Human Rights. As will be seen, this has now emerged as a crucial issue following the post-hearing exchanges. However, before returning to it in that context, I will consider the treatment of the discrimination issues, and in particular article 3(1), in the courts below.
"Although this is not the expressed aim of the cap, its discriminatory effect is built in to its structure. Lone parent families are more likely to be affected by the cap precisely because it is so difficult for them to move into work; and the effects of the cap on them will necessarily be much harsher the corollary is that a lone parent will be far less likely to be able to avoid the cap by moving into work (a point accepted by the Government). The effects of the cap on a single mother and her children will be more severe the more children she has to clothe, feed and house, and she must do so alone."
(i) The 2010 Treasury Spending Review made clear that a principal objective was "to raise children out of long term poverty";
(ii) The February 2011 Impact Assessment showed that the government was "keenly aware" of the likely impact on children;
(iii) The March 2011 Equality Impact Assessment stressed the objective of reversing the detrimental impact on families and children of benefits dependency, and indicated that the government was looking at ways to ease the transition for large families;
(iv) The Parliamentary debates "focussed time and again" on the interests of children; and
(v) The July 2012 Impact Assessment revised the assessment of the number of children likely to be affected and addressed the issue of short term relief.
These points have been in substance adopted in the submissions of the Secretary of State in this court.
"(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.
"(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child's best interests; what criteria it is based on; and how the child's interests have been weighed against other considerations, be they broad issues of policy or individual cases." (emphasis added)
(i) Article 3(1) of the UNCRC is a provision of an unincorporated treaty which may only be relied on to the extent that it has been transposed into domestic law;
(ii) The ECtHR uses international law when determining the meaning of provisions of the ECHR, in accordance with the Vienna Convention on the Interpretation of Treaties;
(iii) Article 3(1) of the UNCRC is, as a matter of principle and in accordance with Strasbourg authority, not relevant to the question of justification of discrimination under article 14 read with A1P1. It has no role to play in determining the meaning of article 14 (read with A1P1 or otherwise), and does not inform or illuminate the question whether the differential impact on women of the benefit cap is proportionate;
(iv) Article 3(1) of the UNCRC does not supplant, dilute or compromise the Stec test which all parties have agreed, at every stage of these proceedings, applies both when considering whether the aims are legitimate and when determining whether the 2012 Regulations, having regard to their differential impact on women, are proportionate;
(v) Even if the Court were to consider it foreseeable that the ECtHR may develop its case-law to have the effect that a breach of article 3(1) of the UNCRC renders legislation disproportionate, there are strong constitutional reasons why the Court should refrain from going beyond the current Strasbourg jurisprudence; and
(vi) In any event, the 2012 Regulations do not breach article 3(1) of the UNCRC. The Secretary of State fully took into account the best interests of children, as a primary consideration, and these were extensively debated in Parliament.
Point (iii) international treaties and article 14
"This would appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments" (para 146)"
Of this case Mr Sheldon QC for the Secretary of State commented:
"the court carried out the proportionality exercise (in respect of article 14 read with article 8) in the usual way and only subsequently observed that the outcome "would also appear to be more in keeping with the best interests of the child". That is not the same as using the UNCRC for the purposes of carrying out the balancing exercise itself. Still less does it involve using the UNCRC to alter the proportionality test."
If that was intended to suggest that the reference to the UNCRC was purely incidental to the court's reasoning, I cannot agree. The prominence given to the relevant articles in the earlier exposition of the relevant law shows to my mind that it was treated as a significant part of the consideration of article 14, albeit in a very different factual context to the present case.
"Even if that was a correct approach, it does not justify using a treaty involving one group (here, children) to resolve any uncertainty about a claim for discrimination brought by, and in respect of, an entirely different group (here, women)."
I see no reason to question Maurice Kay LJ's approach as applied to the case before him, which seems wholly consistent with the ECHR cases already cited. I accept however that the treaty in question was directly related to the particular form of discrimination there in issue. I will return to that point.
Compliance with article 3(1)
"if the level of the benefit cap was based on the number of children in a household it would undermine the intention that there should be a clear upper limit to the amount of benefit families can receive."
"Agreeing to exclude child benefit from the cap would have effectively resulted in there being no limit to the amount of benefit a household could receive. Further, Child Benefit, like other welfare benefits, is provided by the state and funded by taxpayers and therefore with the aim of reducing welfare expenditure and reducing the deficit the Government believes it is right that it is taken into account along with other state benefits when applying the cap."
It is noteworthy that, as far as Mr Holmes' evidence went, the Secretary of State offered no substantive response to the specific concerns expressed by the Childrens' Commissioner and others about the practical impact on children of families affected by the cap. Of the two points made by him, the second is no more than a general statement of the desirability of limiting government expenditure, without any direct reference to the interests of children. The first point the need for a "clear upper limit" - begs the question whether it is consistent with the statutory framework to treat child benefits as no more than a component of the family income.
"The aim of child tax credit is to provide support for children. The principal policy objective is to target that support so as to reduce child poverty. The benefit attaches to the child rather than the parent." ( 1 WLR 1545 para 25)
The same could be said of child benefit.
UNCRC article 3(1) and A1P1
(i) In X v Austria (2013) 57 EHRR 14, where the complaint concerned discrimination by restrictions on adoption by single sex couples, the court referred not only to UNCRC article 3(1), but also to article 21 which applied the best interests principle specifically to adoption.
(ii) In Ponomaryov v Bulgaria (2014) 59 EHRR 20, where the complaint was of discrimination in respect of education, reference was made to UNCRC article 28 relating also to education.
(iii) In Burnip v Birmingham City Council  PTSR 117, where the alleged discrimination related to the treatment of the disabled, reference was made to the CRPD, covering the same subject matter.
In each of these cases, it can plausibly be argued that the court was using the international materials to fill out, or reinforce, the content of a Convention article dealing with the same subject matter. They can be justified broadly as exercises in interpretation of "terms and notions" in the Convention, consistently with the Demir principle.
(i) The suggested discriminatory effect upon the victims of domestic violence adds nothing to the accepted discriminatory effect upon women. Moreover neither of the adult appellants is suffering any of the adverse effects of the cap relied upon as affecting such victims, so that the Court of Appeal was fully justified in declining to decide the issue of such victims. Further, the principal adverse effects peculiar to such victims which were relied upon (the treatment of refuges and the possible need for two sets of rent to be within housing benefit) have both been addressed by amendments to the original form of the Regulations.
(ii) It is agreed on all sides that the scheme has legitimate aims. At the very least, the principal aim of discouraging benefit dependence and encouraging work is agreed to be legitimate. For my part I agree that at a time of national economic crisis it was also legitimate to seek to reduce the overall expense on benefits, and that establishing a different balance between those who worked and paid taxes and those who did not was a further legitimate aim.
(iii) A1P1 to the First Protocol is agreed to be engaged to the extent that Stec v United Kingdom (2006) 43 EHRR 47 establishes that, although it does not give an entitlement to benefits, the ECHR does require that if they are provided they must be administered in a manner which is not discriminatory contrary to article 14. Here a discriminatory effect of the regulations upon women is conceded, because they represent much the largest proportion of lone parents forming a household with children. Accordingly the scheme as a whole, including its discriminatory effect, must be justified. The test, in a case involving high level social/economic policy, is agreed by all parties to be that laid down in Stec, namely that it fails to be justified if it is manifestly without reasonable foundation.
(a) does article 3 have legal effect in English law and if so by what route? and
(b) if it does, has there been a breach of it such as to render the Regulations unlawful?
The legal relevance of article 3 UNCRC
Was there a breach of article 3 UNCRC?
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
This departs from the formulation of the paramountcy principle for decisions about the upbringing of a child, or for legislation designed for the protection/advancement of children, mentioned at para 142 above. This paramountcy formulation is employed in the UNCRC but only in relation to one kind of upbringing decision, namely adoption (article 21). The different language of article 3(1) begs two important questions:
(a) what is the extent of the expression "actions concerning children";
(b) what is the meaning of "a primary consideration"
"The concept of the child's best interests is complex and its content must be determined on a case-by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof. Accordingly, the concept of the child's best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child's best interests must be assessed and determined in light of the specific circumstances of the particular child. For collective decisions such as by the legislator the best interests of children in general must be assessed and determined in light of the circumstances of the particular group and/or children in general. In both cases, assessment and determination should be carried out with full respect for the rights contained in the Convention and its Optional Protocols." (emphasis supplied)
"Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests."
Therefore, even in the area of welfare benefits, where the court would normally defer to the considered decision of the legislature, if that decision results in unjustified discrimination, then it is the duty of the courts to say so. In many cases, the result will be to leave it to the legislature to decide how the matter is to be put right.
"The two items most likely to trigger the operation of the cap [are] housing benefit [and] the number of children in the family. Housing benefit reflects (but does not necessarily meet in full) the cost of housing, whether social or private. Accordingly, the cap will bear most heavily on those in receipt of benefit who live in areas where rental costs are high. In practical terms, therefore, this means that those who live in London or in the centre of other big cities where rents tend to be high will be most likely to be affected. It is a striking feature of the scheme and lies at the heart of this application that the cap applies equally to a childless couple in an area with cheap and plentiful social housing as it does to a lone parent mother of several children in inner London compelled to rent on the private market."
The appellants' circumstances
Why is the scheme discriminatory?
" Article 1 of protocol No 1 does not include a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a state does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with article 14 of the Convention."
"The court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation."
How is the discrimination justified?
"Article 14 does not prohibit a Member State from treating groups differently in order to correct 'factual inequalities' between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in order words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment."
Two points are clear from this. The first is that it is not the scheme as a whole which has to be justified but its discriminatory effect: see A v Secretary of State for the Home Department  2 AC 68, per Lord Bingham at para 68; AL (Serbia) v Secretary of State for the Home Department  1 WLR 1434, per Baroness Hale at para 38. It is not enough for the Government to explain why they brought in a benefit cap scheme. That can readily be understood. They have to explain why they brought in the scheme in a way which has disproportionately adverse effects upon women.
(i) to "introduce greater fairness in the welfare system between those receiving out-of-work benefits and tax payers in employment";
(ii) to make financial savings (anticipated to be £110m in 2013/14 and £185m in 2014/15) and "more broadly, help make the system more affordable by incentivising behaviours that reduce long term dependency on benefits"; and
(iii) to increase incentives to work. This is later described as "the main aim of the policy" (Holmes, Witness Statement No 1, para 107).
To a great extent, these objectives overlap, as the principal aim is to make being in work more attractive than being out of work, to encourage people into work, and to reduce long term dependence on benefits, thus not only saving public money but also improving the long term future of these families. No-one can seriously doubt that these are legitimate aims which would probably be supported by most of the population. The question, however, is whether these reasons for bringing in the cap can justify the sex discrimination involved in the way in which it has been implemented. Before turning to that question, however, it is worth examining the criticisms made of each of the objectives claimed.
(ii) Saving public money
(iii) Incentivising work and promoting long term behavioural change
"[d]iscretionary housing payments were in principle available as a possible way of bridging this gap, but they cannot in my judgment be regarded as a complete or satisfactory answer to the problem. This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of LHA [local housing allowance], and still less the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that discretionary housing payments are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near to providing an adequate justification for the discrimination in cases of the present type."
The additional money made available for DHPs when the benefit cap was introduced is not ring fenced. As Mr Holmes makes clear, these payments were never intended to be a long term solution to the problems facing claimants like these.
"In the case of each of these claimants, therefore, there are powerful reasons why the suggested ways of mitigating the effects of the cap are not appropriate. The sums are too great to bring [their] finances under control by prudent housekeeping; they are for various reasons not in a position to work; and they have educational and/or cultural and support reasons why they do not want to move any distance from their current homes."
"The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'."
"An interference with the peaceful enjoyment of possessions must strike a 'fair balance' between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. ... In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions."
(see also In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill  UKSC 3,  2 WLR 481, para 52). In this case, the complaint is of discrimination in interfering with the peaceful enjoyment of possessions rather than of deprivation of possessions as such. Nevertheless, the benefit cap does come close to a deprivation of possessions, given that it removes, by reference to a fixed limit, benefit to which the claimants would otherwise be entitled by virtue of their needs and, more importantly, the needs of their children.
Relevance of the United Nations Convention on the Rights of the Child
"When considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case law, the court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women."
"The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken of 'any relevant rules of international law applicable in the relations between the parties', and in particular the rules concerning the international protection of human rights ..."
It went on, at para 135, to note "that there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children their best interests must be paramount".
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
This is pithily echoed in the Charter of Fundamental Rights of the European Union, article 24(2):
"In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration."
"a clear commitment that the Government will give due consideration to the UNCRC articles when making new policy and legislation. In doing so, we will always consider the UN Committee on the Rights of the Child's recommendations but recognise that, like other state signatories, the UK Government and the UN Committee may at times disagree on what compliance with certain articles entails."
It is not surprising, therefore, that the Joint Committee on Human Rights, in its scrutiny of the Welfare Reform Bill, regretted that the Government had failed to carry out any detailed analysis of the compatibility of the Bill with the UNCRC (Session 2010-2012, 21st Report, Legislative Scrutiny: Welfare Reform Bill, para 1.35). The Government has not resiled from that commitment, which is repeated in the Cabinet Office Guide to Making Legislation (July 2013, para 11.30), but it has not yet been translated into domestic law.
"(c) Was the Court of Appeal wrong to have found that the discriminatory effects of the 2012 Regulations on lone parents were justified and lawful, and not contrary to article 14 (read with article 8 and/or article 1 of Protocol 1); and
(d) Was the Court of Appeal wrong to have found that the respondent has complied with his obligation to treat the best interests of children as a primary consideration when implementing the benefit cap scheme?"
Not surprisingly, therefore, this court took it as common ground that article 3(1) of the UNCRC was relevant to the discrimination issue. The question was whether it had been complied with. After the hearing, however, it became clear that the Secretary of State no longer accepted that article 3(1) was relevant to whether the admitted indirect discrimination could be justified. He was therefore permitted to file further arguments on the issue, to which the appellants and the interveners were permitted to reply. This has had the beneficial effect of enabling us to consider the issue in more detail.
The role of unincorporated treaties
"It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law ... That is the first of the underlying principles. The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation."
Unincorporated treaties as an aid to statutory interpretation
Unincorporated treaties and the development of the common law
Unincorporated treaties and legitimate expectation
Human rights cases
"these words contemplate the possibility that unincorporated treaties relating to human rights may be given effect without legislation [I]t may be a sign that one day the courts will come to the view that it will not infringe the constitutional principle to create an estoppel against the Crown in favour of individuals in human rights cases."
"In a dualist state such as the United Kingdom, international law and domestic law are regarded as separate legal systems, operating on different planes. International law does not, as such, form part of the domestic legal system. While in particular instances rules of international law may apply in domestic law, they do so by virtue of their adoption by the internal law of the state."
"The risk of some degree of dissonance between domestic law and international law is the natural consequence of self-government by states and of parliamentary sovereignty as the primary constitutional principle of government within the state, and its elimination is a matter for the political process. It is not the proper function of the domestic courts to change domestic legal principles to eliminate such dissonance."
The alternative argument
"The Divisional Court held that, notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence: see Neulinger v Switzerland (2010) 54 EHRR 31, cited by Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department  2 AC 166, para 21. This has not been challenged by the Secretary of State on this appeal."
The indissociability of a child and her/his lone mother