WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 29 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Failing to strike the balance

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Failing to strike the balance

Supreme Court sketch by Isobel Williams from the Hallam & Nealon case

Throughout the pandemic, there has been a constant tension between two of the government’s duties – to offer succour and support to citizens, but also to ensure that the state of the nation’s finances does not become too parlous. Absent his disastrous attempt to spark the nation – and inevitably, the virus – to life with the ‘eat out to help out’ scheme, it is the Chancellor, Rishi Sunak, who has adopted the abstemious stance and the Prime Minister, Boris Johnson, the profligate. Over the course of the last year and a half, we have seen this dialogue play out again and again, whether over the level of financial support offered to those told to isolate at home, over the funding offered to theatres and the arts, or over which businesses deserve to be bailed out by the state and which – like David Cameron’s Greensill – are to be exposed to the vicissitudes of a shut down market.

But while these debates are often framed around the nation’s finances, economic cost was not – or should not – have been the only consideration, with every dispute engaging other, less calculable, rights and responsibilities. To give but two examples, in the justice sector, there was tension between the significant cost of staffing and operating prisons in a pandemic-compliant way and the dignity of the prisoners, and in education, there was tension between the need to ensure every child had access to high quality teaching from home, and the expense of providing laptops or tablets to all.

For anyone approaching the debate from a position of financial rectitude, the answer will always be obvious. The government is ultimately spending the people’s money, and it cannot afford to be cavalier with it.  Such a position is not, in and of itself, flawed – few of us would welcome an unleashed Johnsonian spending spree, with money thrown unthinkingly at projects spanning the sublime to the ridiculous.  But a balance must be found, with the extent of any saving set against the harms that such a policy would do to the dignity of others.

This is a balance that Lord Reed failed to strike in his recent judgment for the Supreme Court in SC et al v Secretary of State for Work & Pensions.  Here, the Court was presented with the question of whether the Cameron government’s two-child limit on child benefits, introduced in 2017, violated the claimants’ ECHR Article 8 right to a family life, and whether it unjustifiably discriminated against women, contrary to Article 14. The logic behind these cuts was that the nation’s finances had become alarmingly thin – an economic argument that looks woeful against the current state of spending – and that the government had to enact savage cuts to get the nation back on an even keel.

The family life arguments were never likely to bear much fruit before the justices. While the European Court on Human Rights has recognised that there may be the need for the state to provide support even in the ‘sphere of the relations of individuals between themselves’, the ECtHR is rarely willing to impose positive financial obligations upon governments in terms of welfare provision, particularly when, as the Court found, the intent of any contested legislation is not, as in this case, to ‘discourage people on lower incomes from having larger families’.

What is disappointing, however, is how reluctant Lord Reed was to engage with the fact that the legislation indirectly discriminated against women.  In single-parent households – households particularly likely to be affected by the legislation – women are overwhelmingly likely to be raising children, and so are overwhelmingly likely to be affected by the reduction of any benefits for a third child.  While he may have been right to suggest that the UN Convention on the Rights of the Child – which the appellants argued prohibited a two-child benefits policy – was to be given limited weight, given that it had not been ratified by Parliament, Lord Reed was wrong to so casually suggest that the government’s legislation was proportionate, and that the demands of the economic policy justified whatever harm it did to women’s rights.

Rather than focussing on the level of savings gained by restricting benefits to two children, Lord Reed instead chose to focus on the fact ‘it is not in dispute that the measure… will achieve savings in public expenditure’, and therefore was ‘rationally connected’ to the ‘objectives pursued by… Parliament’.  This is patently self-evident.  However, by taking such a deferential position, the Court failed to properly balance the competing interests, with there being little consideration as to whether the harm done to those three-children families, as well as women raising children in single-parent households, was outweighed by the savings made to the national purse.  Instead, there was a broad brush reference to the fact that social welfare spending has escalated rapidly in recent years, but without acknowledging that little of this is because of child tax credit, and much is because of the spiralling costs of pensions and other rather more significant outgoings. Perhaps the government would have been able to explain how the extra hundreds of pounds given to the relatively few three-children plus households was of such value to the public purse that it justified the cuts and the harm done to the dignity of women and children, but it is a shame that Lord Reed did not see fit to ask the question.

Even more alarming, however was Lord Reed’s disparaging language towards campaigning organisations, who in this case, having failed to successfully lobby Parliament to remove the three-child limit from the legislation, turned to the courts instead.  Respect is due to Parliament and its intentions, but this does not mean that simply because the other side has more effective – or as is more likely, more wealthy and more influential – lobbyists,  the legal arguments of charities and other more civic-minded institutions are not also due respect. Indeed, the fact that this case had made its way all the way to the Supreme Court suggests that the case had genuine legal merit, making Lord Reed’s criticism here even more inexplicable.  Even if Lord Reed does take such a dim view of the legal actions filed by charities and campaigning groups, he should have been well aware that discretion was the better part of valour here, and should have held his tongue, with this criticism beneath the dignity of the Supreme Court he leads.

At the heart of Reed’s judgment was the need to defer to the wisdom of Parliament.  The judgment is laden with references about the need to respect the intent and wishes of the legislature, and emphasising that once matters enter the realm of economic policy, judges should be slow to challenge the decisions of the other branches of government.  This is all well and good, but for the fact that it fundamentally ignores the fact that every policy is ultimately rooted in financial concerns, and that it is the role of the court to properly weigh up whether those concerns adequately justify the harm done to people’s rights and dignity.  When you couple this with the fact that, as Alexander Horne has recently written for Prospect, Parliament is increasingly unable to challenge the authority of the executive, and functions more and more as a rubber stamp, deferring to Parliament is instantaneously transformed into deference to the executive.

The nation is governed by a chaotic and weak-minded government, where policies don’t even make it to the end of an hour, let alone of the news cycle.  Deferring to a government – and so, a Parliament – that governs by the fleeting whims of the national mood, rather than through genuinely engaging with the issues is to abandon the values that are supposed to underpin the decisions of the judicial branch and those of a liberal democracy.  In this decision, the Court had the opportunity to emphasise such values, holding itself to a higher standard than our increasingly feeble legislature and government. It is tragic it did not do so.

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