Enforcing human rights – what the Benefit Cap judgment means for future cases

A month ago the Supreme Court handed down a judgment which came within a whisker of finding that the ‘Benefit Cap’ (the limit on the amount of state benefits that can be paid to a family) was unlawful under the Human Rights Act 1998. Put very shortly, three of the Justices (a majority) found that the cap breached the obligation to treat children’s best interests as a primary consideration under Article 3 of the UN Convention on the Rights of the Child (UN CRC). However only two of the Justices (a minority) held that this led to a breach of Article 14 of the European Convention on Human Rights (ECHR), the prohibition on discrimination, on the facts of that case. As it is only the ECHR which is part of English law through the Human Rights Act 1998, the cap survived – by the skin of its teeth.

There is an excellent summary of the Benefit Cap judgment from the Child Poverty Action Group, who intervened in the case. The purpose of this post is to set out some thoughts about what the Supreme Court’s judgment means for future cases, particularly those involving disability or children’s rights issues. There are of course a host of human rights conventions and instruments which have been signed and ratified by the UK, including the under-used Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). All the principles discussed below should apply equally to these other conventions.

The reason the Benefit Cap judgment matters is that it shows the growing significance of international human rights conventions in English law. The traditional approach of the English courts was to give international human rights little if any weight. In our ‘dualist’ system international treaties only become part of our law when they are incorporated through an Act of Parliament – this is why we needed the Human Rights Act to ‘bring rights home’ in relation to the ECHR.

There is, as yet, no Act of Parliament to make the UN CRC (UN CRC) or the UN Convention on the Rights of Persons with Disabilities (CRPD) part of English law. So the Supreme Court’s judgment is the latest word on what legal force these international treaties have in the absence of a Children’s Rights Act or a Disability Rights Act.

Why does any of this matter? Put shortly, because the rights included in the UN CRC and the CRPD are far more extensive than the ECHR rights. To take two examples:

  • Article 3 of the UN CRC, which was extensively considered in the Benefit Cap case, requires that in all actions and decisions concerning children their best interests are treated as a primary consideration. This means that children’s well-being has to be considered first by decision-makers and a decision which is contrary to children’s well-being has to be justified by reference to other important factors. This has all been clear since the leading Supreme Court case of ZH (Tanzania); Lady Hale and Lord Kerr’s judgments in that case are worth careful reading. There is an important General Comment from the UN Committee on the Rights of the Child which shows that Article 3 UN CRC applies both to decisions taken about individual children and to policy decisions and legislation affecting children. See Lord Carnwath’s judgment in the Benefit Cap case at [105]-[108] for discussion of the General Comment.
  • Article 19 of the UN CRPD protects disabled people’s right to live independently and be included in the community. Although some of these rights have been read into Article 8 ECHR, the CRPD has a much clearer statement of the fundamental principles, starting with disabled people’s right to choose where the live on an equal basis to others. This right is going to be hugely important in the inevitable conflict with local authorities if the Independent Living Fund closes at the end of June.

These are simply two of the most obvious examples. There are plenty of others – rights I’m keen to explore in future cases include children’s right to participate (Article 12 UN CRC) and the right to equal recognition before the law for disabled people (Article 12 CRPD). Both Conventions also contain a host of ‘socio-economic’ rights (rights to health, housing, education etc) which are either absent from the ECHR or present in very diluted form (for example, the right to education in Article 2 of the First Protocol to the ECHR simply states ‘no person shall be denied the right to education’, and Article 8 ECHR contains no guarantee of a home).

Put simply, the UN CRC and CRPD are where the real action is for children’s and disability rights. See for example the discussion of the right of every child to ‘a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ in Article 27 UN CRC by Lady Hale at [227] in the Benefit Cap judgment.

So it is clearly in the interests of disabled people and children that it should be possible to enforce their specific human rights in English courts. What then does the Benefit Cap judgment say this key question?

The high point of the judgment comes from Lord Kerr – although it is important to stress that none of the other Justices agreed with Lord Kerr on this point, so it is not yet law to be followed. Lord Kerr’s conclusion at [257] was that ‘article 3(1) of UNCRC is directly enforceable in UK domestic law’. His reasoning, put very shortly, was that human rights treaties are different from other forms of international treaty. As Lord Kerr asked at [255], ‘Why should a convention which expresses the UK’s commitment to the protection of a particular human right for its citizens not be given effect as an enforceable right in domestic law?’.

This question may well be answered by the Supreme Court in a future case. However for the more orthodox approach we can turn to the judgment of Lord Reed, who was part of the majority which held that the Benefit Cap was lawful.

Lord Reed held at [83] that ‘It is not in dispute that the Convention rights protected in our domestic law by the Human Rights Act can also be interpreted in the light of international treaties, such as the UNCRC, that are applicable in the particular sphere’.* For international convention fans, this is partly a result of the Vienna Convention on the Interpretation of Treaties; see Lord Carnwath’s judgment at [116] for more on this. As Lord Kerr put it at [260], the courts have recognised that ‘the nature and content of Convention rights could be informed by international instruments which expressed standards that were internationally recognised’. See also the emphatic statement by Lord Kerr at [261] that ‘where the claimed right is directly relevant to the domestic issue to be decided, then recourse to the standards that the international instrument exemplifies is not only legitimate, it is required’.

This is not new; in Burnip v Birmingham City Council the Court of Appeal held that the CPRD has the potential to ‘illuminate’ the meaning of discrimination and justification under Article 14 ECHR (see [22], and Lady Hale’s judgment in the Benefit Cap case at [211]-[212]). However it is very helpful to have the basic principle so clearly stated and on an unanimous basis by the Supreme Court. Lady Hale reiterated at [218] that ‘our international obligations under the UNCRC and CEDAW have the potential to illuminate our approach to both discrimination and justification’.

This then is the main way in which the UN CRC and CRPD rights become real in English law – through influencing the interpretation of the ECHR rights. For example, in ZH (Tanzania) the decision to deport a mother was held to be a disproportionate interference with her Article 8 ECHR rights and therefore unlawful in part because there had been a breach of Article 3 UN CRC. In the Benefit Cap case, Lord Carnwath (the key swing vote in the case) found that there had been a breach of Article 3 UN CRC (see [128]). However crucially, he agreed with Lord Reed and Lord Hughes that there was no sufficient link between this breach and the discrimination against mothers who lost their ‘posessions’ – the benefits taken away under the cap – for the purposes of Article 1 of the First Protocol ECHR (see [129]-[132]). The cap therefore survived notwithstanding the breach of the rights of children affected by it identified by the majority.

A key consequence of the Benefit Cap judgment is therefore that the role of international conventions like the UN CRC and CRPD is reinforced where there is a direct link with the ECHR right in play. An obvious example would seem to be Article 19 CRPD, which is directly linked to the right to respect for disabled people’s private life and home protected by Article 8 ECHR. Watch this space for the cases bound to come to court on this point if the ILF closes (see above).

Lord Hughes (who also held that the Benefit Cap was lawful) identified two other ways in which treaties such as the UN CRC can be relevant in English law; see [137]. These were as follows; ‘First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations. Second, international treaty obligations may guide the development of the common law.’ What this means in practice is that if it is unclear what domestic law says on a particular issue then the interpretation chosen should be the one which is most consistent with the human rights of those affected. For a fuller discussion of these issues see Lord Kerr at [239]-[242], and consideration of the link to legitimate expectation at [243]-[246]. This may well be relevant in future cases – but the principle with greater relevance in practice may well be the link between the UN CRC and CRPD and the ECHR rights which are directly part of our law.

There is now a clear invitation to us all to rely on the international conventions whenever a relevant ECHR right is engaged, both in court and in wider arguments about policy, legislation and resource allocation. The relevant ECHR right is most likely to be either Article 8 (right to respect for private and family life and the home) or Article 14 (non-discrimination). But there may well be other relevant rights – including the rights relating to ‘possessions’ including benefits (Article 1 of the First Protocol) and education (Article 2 of the First Protocol) – which provide the gateway to make the UN CRC and CRPD rights real. In every case there must be the ‘necessary connection between the ECHR right under consideration and the international instrument’; see Lord Hughes in the Benefit Cap case at [146].

I hope this post is some use as a summary of a complex judgment. As always, the best source of information is the judgment itself. I also hope to be able to blog further about other cases which have taken up the baton from the claimants who challenged the Benefit Cap and showed it breaches children’s rights.

* See also at Lord Reed at [86]: ‘It is clear, therefore, that the UNCRC can be relevant to questions concerning the rights of children under the ECHR’. As Lady Hale put it at [217],’ the international obligations which the United Kingdom has undertaken are also taken into account in our domestic law insofar as they inform the interpretation and application of the rights contained in the European Convention, which are now rights in UK domestic law.’