Lady Hale, President of the Supreme Court Condemns Government Austerity

Human Rights and Family Life in the United Kingdom
 
71 years ago, the United Nations adopted the Universal Declaration of Human Rights

Article 1 proudly proclaims that ‘All human beings are born free and equal in dignity and rights.

It wasn’t true then and it isn’t true now, but it voices the great principle of universality. Human rights are there for all of us. Not just for the privileged or the underprivileged few. For the majority as well as the minority. For the popular as well as the unpopular.

While some families are fighting for legal recognition of their relationships, we should not forget that other families are fighting for enough to live on and to make ends meet. The UK government's austerity policies have undoubtedly made this worse and have posed some uncomfortable problems for the courts.

One shortcoming seen by some in the European Convention is that it covers the civil and political rights declared in the Universal Declaration but not economic and social rights.

Strasbourg is quite clear that the protection of the 'home' in article 8 does not require the state to provide housing and the protection of property in article 1 of the first protocol does not require the state to provide welfare benefits. This is a matter of socio-economic policy for the individual member states. But what we do provide must be provided without unjustified discrimination.

The problem that we have in the courts is that it is quite obvious - indeed it is officially conceded - that many of the recent changes to the benefits system impact more harshly on women, children and disabled people than they do on other groups: for example, the recent report from the Equality and Human Rights Commission, Is Britain Fairer?, states that 'UK wide reforms to social security and taxes since 2010 are having a disproportionate impact on the poorest in society and particularly affecting women, disabled people, ethnic minorities and lone parents' (p 87). 'Government policies on social security and taxation have increased pressure on living standards for some groups, particularly disabled people, women and some ethnic minorities' (p 193).

It was a comparatively small step for Strasbourg to regard contributory social security benefits as a species of property right protected by article 1 of the first protocol. It was a larger step to extend this to means-tested benefits but it happened in Stec v United Kingdom (2006) 43 EHRR 47. The case was about a difference in treatment between men and women for the purpose of reduced earnings allowance. This was an earnings-related additional benefit under the statutory occupational accident and disease scheme. It was non-contributory and funded out of general taxation rather than the national insurance fund. Originally it continued into retirement. Changes which limited entitlement to the benefit after retirement age obviously impacted earlier on women than on men because of the earlier state retirement age for women.

Was this justifiable? In a famous passage, Strasbourg said this: '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 [citing Van Raalte, para 37; Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405, para 67]. 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 [citing James v United Kingdom (1986) 8 EHRR 123, para 46; National Provincial Building Sociery v United Kingdom) para 80]. 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".'

Differential retirement ages had been justified by the need to correct factual inequalities between men and women in the workplace: Strasbourg is not against positive discrimination to redress factual inequalities. Also, linking Reduced Earnings Allowance to retirement age was justified because it was intended to replace lost earnings. Phasing out of differential treatment for retirement purposes as the socio-economic condition of women improved depended on local conditions.

The Supreme Court applied the 'manifestly without reasonable foundation' test in Humphrrys v Revenue and Customs Commissioners [2012] UKSC 18, [2012] 1 WLR 1545. This concerned the rule that child tax credit should not be split between parents who shared their child's care but should go to the one with the main responsibility for looking after the child. This indirectly discriminated against fathers, because they were much more likely to be looking after the child for a smaller proportion of the time than mothers. But we pointed out that the complaint would be the same whichever way that went - this was really discrimination between majority and minority care givers - and not related to gender in such way as to show a lack of equal respect (para 21). We also said that the less stringent 'manifestly without reasonable foundation' test did not mean that the justifications put forward for the rule should escape careful scrutiny (para 22). This was a case where the government had in fact considered the pros and cons of the no splitting rule quite carefully.

The test was applied again but more controversially in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449. The benefit cap limits the total sum in benefits which any household can receive even if this takes them below subsistence level as represented by the means-tested benefit rates. This was admittedly indirectly discriminatory against women because it affected lone parent households more harshly than dual parent or no parent households and lone parents are overwhelmingly women. One question was whether the effects upon the children could be taken into account when considering the justification for the discrimination against women. There was a majority in the Supreme Court for the view that the government had not fulfilled its obligation under article 3.1 of the Children's Rights Convention, to treat the children's best interests as a first priority, when deciding to cap benefits. But there was also a majority for the proposition that the complaint was not of discrimination against the children but against women. The impact upon the children was the same whether the lone parent was a man or a woman (rather as it was in Humphrrys). So, in the majority view, it was not appropriate to use an unincorporated international treaty like the Children's Rights Convention in this indirect way. We now have before us an attack upon the revised benefit cap, which is even harsher than the original. This time the complaint is not of sex discrimination, but of discrimination against lone parents, particularly lone parents with very young children, and their children. It is easier to see how the best interests of the children ought to be taken into account in this context. But whether they have been is a different question.

An all-out attack on the 'manifestly without reasonable foundation' test was mounted in R {Carmicbael} v Secretary of State for Work and Pensions [2016] UKSC 58, [2016] 1 WLR 4550. This was a challenge to the 'removal of the spare room subsidy' from disabled people who needed an extra room because of their disability. The Supreme Court held that the balance between entitlement to housing benefit and reliance on discretionary housing payments was one of social policy for the legislature unless it was manifestly without reasonable foundation. But where there was a clear medical need for an extra bedroom - where a married couple could not share because of the disability of one of them or an extra bedroom was needed for an overnight carer - then it could not be justified.

Heard together with Carmichael was the case of A. This was an attack upon the rule as it affected victims of severe domestic violence who were living in specially adapted safe houses where they needed to stay because of the risk of serious harm from an ex-partner. It wasn't their fault that the house might have an extra bedroom - it was the one chosen by the authorities to adapt for their protection. Long ago, Strasbourg recognised a positive obligation to protect vulnerable people from serious abuse by other individuals: a mentally disabled person from sexual abuse, in X and Y v Netherlands (1985) 8 EHRR 235; children from physical abuse and neglect in their own families in Z v United Kingdom (2001) 34 EHRR 3; and women from intimate partner violence in Opuz v Turkey (2009) 50 EHRR 28. In A, I remarked that 'Obviously, to deny women protection against gender-based violence, such that they cannot lead an equal life with men, is discrimination against them in the enjoyment of their fundamental rights'. This was what we call Thlimmenos discrimination - failing to treat different cases differently - because she had been treated just like any other lone parent with one child when her circumstances required that she be treated differently. But only one of the other Justices agreed with me.

I have focussed on the contribution made by the Human Rights Act in responding to developments in our private and family lives because we all have a private life and almost all of us have some experience of family life. It is an example of one sort of dialogue between the Strasbourg courts and the member states - where at one point in time Strasbourg may be ahead of a member state, as with same sex relationships and the rights of trans people, and at another point we may be ahead of them, as with adoption by unmarried and gay couples and civil partnerships. But that we have each learned from one another is obvious and the Human Rights legislation has enabled us to put that learning into practice in a way which continues to respect the sovereignty of the UK and Island Parliaments. The UK Parliament's Joint Committee on Human Rights is currently inquiring into the experience of the Act and I think that we can tell them that it has been something of a success for families and for their children.

Read the full speech: https://is.gd/dcPx7l