When a legal challenge one of the coalition Government’s flagship welfare reforms – an overall cap of £26,000 per year on the amount any family could receive in benefits – was reviewed by the Supreme Court earlier this year, the resulting judgement left many observers scratching their heads. Had the Court declared the cap unlawful or not? The answer seemed to be a mixture of yes and no.
In a split judgement, a majority of the Court ruled that the benefit cap violated Article 3 of the UN Convention on the Rights of the Child (UNCRC), which states that “the best interests of children must be the primary concern in making decisions that may affect them”.
But despite this breach, the policy ultimately survived because a separate majority maintained that, because UNCRC is an international treaty which has not been incorporated into domestic law, any rights that it may confer are not enforceable in UK courts.
The Court’s ruling in R (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent)  UKSC 16 – “the cap case” – provided a fascinating insight into the tensions inherent in the UK’s dualist conception of international law. And in the end, the questions the courts were forced to confront during the proceedings – about which rights they are permitted to enforce and when – are not likely to go away any time soon. In fact if anything these questions are likely to become increasingly urgent as a new round of welfare reform legislation looms into sight.
As the Government acknowledged during the proceedings, the overwhelming majority of those affected by the benefit cap are children, and large families are most likely to be caught. The severity of its impact increases with the size of the family.
The breach of UNCRC was obvious. As Lady Hale wrote in her powerful dissenting opinion, “it cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life.”
But a majority of the Court disagreed with her conclusion that the cap was unlawful, upholding its legality after accepting the Government’s contention that the judges lacked the power to enforce rights conferred by the UNCRC as an unincorporated treaty. Despite that outcome, however, the case is unlikely to be the last word on this controversial issue.
It has often been described as one of the core principles of our legal system that UK courts may not adjudicate issues of international law. The frequently cited International Tim Council case of 1990 led to a House of Lords ruling holding that:
“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 […] Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation.”
That seems about as absolute as a prohibition can be. But the rationality of applying this principle to human rights treaties has never been clear.
As Lord Steyn stated in re McKerr in 2004, “it is […] difficult to see what relevance [International Tin Council] has to international human rights treaties which create fundamental rights for individuals against the state and its agencies. A critical re-examination of this branch of the law may become necessary in the future.”
That time, I would argue, has now come.
The Government says we should trust them to do the right thing. We should not.
Under questioning from the Parliamentary Joint Committee on Human Rights earlier this year, Children’s Minister Edward Timpson insisted that the Government was not opposed in principle to the incorporation of UNCRC into domestic law, but felt that it was unnecessary because he was “confident that the laws and policies that [the Government] has in place already are strong enough to comply with the Convention.”
The Supreme Court trusted the Government to do the right thing in the cap case, in which Lord Carnwath, while upholding the measure, called on the Government to rethink its approach.
“I would hope” he wrote “that in the course of their review of the scheme, the government will address the implications of these findings […] However, it is in the political, rather than the legal arena, that the consequences of that must be played out.”
So let’s see how it has played out.
Instead of seeking to mitigate some of the harshest impacts of the policy as the Court had seemed to advise, the Government announced just weeks after the ruling that the scope of the cap will now be increased dramatically. Lowering the level of the cap by £3,000 in London and £6,000 elsewhere will, according to the Government’s own impact assessment, extend its effects to an additional 224,000 children.
A raft of further changes are also on the horizon, with the Government bringing forward a Welfare Reform and Work Bill which includes sweeping cuts to benefits for children and disabled people. The Government already has a fight on its hands in Parliament, but if their majority holds and efforts to amend the Bill fail, I hope that further legal challenges will arise. The questions the cap case raised about the enforceability of international human rights protections in our courts should be looked at again.
The Government has thrown down the gauntlet with its new round of welfare cuts. It remains to be seen how the courts will respond to the challenge.
At para 226.
 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (“International Tin Council”)  2 AC 418.
 In re McKerr (AP) (Respondent) (Northern Ireland)  HL 12, paras 49-50 (emphasis added).
 Joint Committee on Human Rights, The UK’s compliance with the UN Convention on the Rights of the Child, Eighth Report of Session 2014-15, HC 1016, p 12.
 R (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent)  UKSC 16, para 133.