Social security benefits have been for some years one of the main battlegrounds between the government and the courts. It is an electric subject at a time when politicians are resentful of judicial review and the government is trying to keep the lid on benefits.
The Human Rights Act 1998 has been the main tool used by pressure groups to force an increase in the level of benefits. It is not a promising tool, because the European Court of Human Rights has generally set its face against the creation of positive rights to any given level of social provision. Benefits have implications for public finance which are generally regarded as matters for political judgment, even in Strasbourg.
Therefore the focus has shifted in recent years to Article 14 of the European Convention on Human Rights, which has been held to outlaw unjustified discrimination in the provision of social benefits.
Social benefits are necessarily selective. Some lines are hard to draw and it is usually possible to find some element of discrimination in their provision. The question for the courts is whether the discrimination is justified.
The politicians say that that too is a matter for political judgment. In a ruling last month in the case of R v Department of Work and Pensions, a seven-judge panel of the Supreme Court agreed with them in a wide-ranging and significant judgment.
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The case was about the statutory rule that limits the provision of benefits to families with more than two children. The argument was that the rule was discriminatory and unjustifiable under the convention.
The Supreme Court accepted that it was discriminatory and had a disproportionate effect on women, who are the main child-rearers in most families. However, they held that it was justifiable because it pursued a legitimate aim, namely to protect the economic interests of this country by limiting public expenditure. The discriminatory effect and the impact on women were outweighed by the economic and financial considerations.
The court did not conduct its own sociological analysis to reach this conclusion. It held that this kind of balancing exercise was a matter for parliament, which had determined the balance to be fair. It was not for the courts to interfere unless parliament’s assessment was obviously unreasonable.
In an important statement of principle, Lord Reed, the court’s president, who delivered the only judgment, said: “There are no legal standards by which a court can decide where the balance should be struck between the interests of children and their parents in receiving support from the state, on the one hand, and the interests of the community as a whole in placing responsibility for the care of children upon their parents, on the other.
“The answer to such a question can only be determined, in a parliamentary democracy, through a political process which can take account of the values and views of all sections of society. Democratically elected institutions are in a far better position than the courts to reflect a collective sense of what is fair and affordable, or of where the balance of fairness lies.”
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The judgment is rich in other insights. It rejects the view — which had been favoured by some judges in earlier Supreme Court cases — that positive social entitlements can be derived from international treaties such as the UN Convention on the Rights of the Child, if they have not been given legal effect by parliament. It also takes a swipe at the practice of interpreting parliamentary legislation in the light of statements made in parliament by ministers about its intended effect. Ministers speak for themselves, not for parliament.
The common factor in all of these points is an insistence on the centrality of parliament in our constitution. In the past three years, the mood in the Supreme Court has changed — recent judgments have defended parliament against both the executive’s attempts to sideline it and judicial attempts to intrude on its functions. The result is an interesting convergence between the higher judiciary and current thinking in government.
The Judicial Review and Courts Bill — published a fortnight ago — proposes some modest changes to the dodgy legal doctrines that have enabled the High Court to review the decisions of lower tribunals despite statutory provisions that they are to be final. In a series of recent speeches, Robert Buckland QC, the justice secretary and lord chancellor, has explained the thinking behind it.
These speeches mark a refreshing change from the mindless judge-bashing provoked by fury about the two Miller decisions regarding the UK’s exit from the EU. We are told that the object of any reform will not be to curtail the right of the courts to review politically controversial ministerial decisions. It will be to safeguard the authority of parliament by requiring a more respectful approach to the language of legislation.
“The executive and judiciary are servants of parliament, which derives its authority from the people — and ultimately this is the place where all the debates culminate,” Buckland said in a speech at University College London in June.
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The convergence is welcome and overdue. It promises to release much of the destructive tension between ministers and the courts.
Lord Sumption is a former justice of the Supreme Court
