Government should have consulted Child Poverty Commission on welfare strategy

2 October 2012 by

Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin) (17 July 2012) – read judgment

The High Court has ruled that the government acted unlawfully by removing the Child Poverty Commission, an advisory body set up under the Child Poverty Act 2010 . They had also acted beyond their powers by preparing a child poverty strategy without having requested and having regard to the advice of that Commission. But government is free to formulate new policy and as such there was nothing irrational about the strategy itself.

There is of necessity a great deal of statutory construction in this judgment which makes for dry reading. But the ruling is an important reassessment of the principles of judicial review that have taken root since the power of the courts to intervene in government decision making was reinforced in Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147. This ruling, as every law student knows, established that a public body acts unlawfully, both in the narrow sense of acting outside its jurisdiction, and where such jurisdiction was wrongly exercised. This means that courts may intervene not just where a governmental act is unlawful under an express provision of the statute but also where the decision or policy, although authorised by statute, has been made in breach of a rule of public law.

The case is also interesting because it raises the question of what is the appropriate remedy, in public law, where the challenge is successful on procedural rather than substantive grounds; here the court accepted that the secretaries of state should have consulted the Commission, and that the preparation of the new strategy was unlawful to that extent, but there was nothing in the substance of the strategy itself that could be attacked in court. The few paragraphs detailing the parties’ submissions on the wording of the declaration are critical to the outcome of this litigation, since the claimant charity needs to retain a negotiating position under the new legislation.

Background facts

Put briefly, the Child Poverty Act 2010 mandated the formation of a Child Poverty Commission whose advice should be sought by all relevant departments in preparing their strategy for tackling child poverty (sections 10(1)) and 10(3) of the Act). Such a strategy was to be laid before Parliament within twelve months of the passing of the Act. In forming the strategy the secretaries of state had to request the advice of the Child Poverty Commission and they had to have regard to that advice when preparing the strategy.

What in fact happened is that after the formation of the coalition government in May 2010 it was decided to remove the Child Poverty Commission in favour of   an independent body

with a remit to measure progress against the Government’s strategy on child poverty and life chances, acknowledging the coalition government’s broader approach to the issue of child poverty.

This “broader approach” reflected the coalition government’s philosophy that the new welfare state should have at its foundation “the belief that work, not welfare, is the best route out of poverty for those who are able to work,” that  “fairness and personal responsibility, not cash handouts, [should be] the responsible choice in this fiscal climate.”

As a result of this the Commission did not exist when the defendant secretaries of state were making the strategy and therefore they could not ask its advice.

The claimant charity applied for judicial review of the defendants’ decision to prepare a national strategy to tackle child poverty without having requested the advice of the Child Poverty Commission under section 10(1) of the Child Poverty Act 2010.   The claimant also contended that the strategy document that had been prepared without their input provided no detail as to the measures intended to be implemented and therefore was in breach of s.9(7) of the 2010 Act.

Singh J upheld the first part of the claimant charity’s application, but rejected its second contention.

The court’s reasoning

It is a fundamental principle under our constitutional system that the executive has no power to make law save in those circumstances where it is granted power to do so by primary legislation: X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 A.C. 1 . The executive was entitled to invite Parliament to change primary legislation, but it could amend or repeal primary legislation in the absence of delegation by Parliament itself. However meritorious the new coalition government in 2010 may have thought its proposed replacement commission might be, it was not entitled to pre-empt any primary legislation that Parliament might or might not pass in the future if so invited.

The fact is that, as things stood in 2010 and early 2011, Parliament had enacted primary legislation requiring the establishment of the Child Poverty Commission and requiring the Secretary of State to take advice from it before publishing the strategy and laying it before Parliament, something which had to be done within twelve months of the enactment of that Act. That is something which government ministers decided consciously and as a matter of policy not to do. The new Government may have had good reason to adopt a different policy from that of the previous government. However, in my judgment, they were not entitled as a matter of law to ignore, or to fail to comply with, primary legislation as laid down by Parliament itself. [31]

A great deal hinges on whether a legislative requirement is “mandatory” or “directory”. In the past 130 years, a vast amount of litigation has been conducted over this distinction. The view has evolved that where the requirement is mandatory, a failure to comply with it invalidates the act in question.  When it is merely directory,  a failure to comply does not invalidate the policy or decision that follows (R. v Soneji (Kamlesh Kumar) [2005] UKHL 49, [2006] 1 A.C. 340,) But this classification is the end of the inquiry, not the beginning. A better test (as suggested by the Australian High Court in Project Blue Sky Incorporated v Australian Broadcasting Authority [1998] 194 CLR 355) for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. The emphasis should not be on definitional distinctions but on what ought to be on the consequences of non-compliance. The real question was whether Parliament can fairly be taken to have intended total invalidity. In Singh J’s view, the procedural requirement to obtain advice from the Child Poverty Commission laid down by Parliament in section 10 (1) of the 2010 Act was an “important” one. As such, the defendants were in clear breach of s.10(1) as a result of their deliberate decision not to establish the Child Poverty Commission. This infraction of  s.10(1) was sufficiently important that it undermined the lawfulness of the defendants’ poverty action strategy.

 The Commission was intended to be an independent body with relevant experts. It was required to publish its report. Accordingly, the scheme of the 2010 Act was that Parliament should have both the benefit of the Strategy, which had to be laid before it, and the report of the Commission, which had to be published. In my judgment it was not open to the Secretary of State simply to embark on a different policy and so ignore the will of Parliament that he should obtain a report from the Commission before laying his Strategy before Parliament.[45]

Singh J did not accept the claimant’s related argument, that the substance of the strategy as adopted offended section 9(7) of the 2010 Act. It was not right to treat the words of that section as terms of art or as raising hard-edged questions of law, and therefore there was no basis for finding that the judgment of the Secretaries of State – that they had produced a Strategy within the meaning of the 2010 Act – was irrational.  The government enjoys no power to make the law, but it does have the right to make policy. It was not for the courts to intrude on the democratic process; in this context it was worth recalling the words of Holman J at paragraph 79 of R (On the Application of Luton Borough Council and Others) v Secretary of State for Education[2011] LGR 553:

…. The law recognises that public bodies, and especially central government, must enjoy a wide discretion to change policies from time to time to reflect their perception of the public interest. ‘The liberty to make such changes is something that is inherent in our form of constitutional government’.

So although the secretaries of state had acted unlawfully in not consulting the Commission, or not reinstating one to be consulted prior to the new legislation, the substance of their new policy on child poverty could not be attacked.  The strategy could only be challenged on the basis of irrationality, which was not made out.

The remedy

So the question remained as to the appropriate remedy in this case. The position was difficult because a quashing order or a declaration of illegality would have no real meaning, since the government has repealed the law under which they acted unlawfully; the new legislation for tackling child poverty envisages a completely different role for the Child Poverty Commission’s successor.  A declaration of unlawfulness would be no different in effect from quashing the original decision since it would require the government to consult. As the judge himself observed, it is difficult to see how such a requirement could be complied with since the requirement to take advice has been repealed by Parliament with effect from 8 May 2012 and moreover the relevant Commission does not exist and will not exist. That now is “Parliament’s will”, as he acknowledges at para 75.

It is not surprising therefore that the claimants argued at the remedy stage that they should be able to preserve as far as possible the potential argument that the Secretary of State now should make good the error of non-consultation, as far as it is reasonably possible under the new regime. Singh J granted the claimants the declaration that

in producing the document ‘A New Approach to Child Poverty: Tackling the Causes of Disadvantage and Transforming Families’ Lives’ the Secretaries of State did not discharge the duty contained in section 9 (1) of the Child Poverty Act 2010 because the duties contained in sections 10 (1) and 10 (3) of the Act were not complied with.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

5 comments


  1. Government offices and NGO’s must work together and plan strategies to overcome this problem of poverty. What people need is support and cooperation from people within the community to come-up with a solution and end this poverty.

  2. Tim says:

    ‘”This “broader approach” reflected the coalition government’s philosophy that the new welfare state should have at its foundation “the belief that work, not welfare, is the best route out of poverty for those who are able to work,” that ”fairness and personal responsibility, not cash handouts, [should be] the responsible choice in this fiscal climate.” ‘

    The unelected coalition government is being deliberately naive here in order to gift itself an excuse to deprive the poor of welfare. Work is not a route out of poverty unless a job and job offer is actually there.If we were to be generous and assume that the half a million vacancies available were full time and in the right places, that still leaves at least two and a half million people with no job to go to.

    Trying to pretend that kicking people off benefits is the same thing as helping them into work (while cutting jobs) is a cheap and vindictive con trick.

    1. Rosemary Cantwell says:

      Samuel Smiles and lifitng oneself up with one’s bootstraps – look what appalling conditions were then.

  3. Joe says:

    Cited judgments and legislation:

    Child Poverty Act 2010 (c. 9)
    URL: http://www.bailii.org/uk/legis/num_act/2010/ukpga_20100009_en_1.html

    Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 (17 December 1968)
    URL: http://www.bailii.org/uk/cases/UKHL/1968/6.html

    Soneji & Anor, R v [2005] UKHL 49 (21 July 2005)
    URL: http://www.bailii.org/uk/cases/UKHL/2005/49.html

    Project Blue Sky Incorporated v Australian Broadcasting Authority
    URL: http://www.austlii.edu.au/au/cases/cth/HCA/1998/28.html

    Luton Borough Council & Nottingham City Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/217.html

  4. Rosemary Cantwell says:

    2 October 2012
    Dear Human Rights Blog
    This has serious implications for many of the Quangos that were deleted.
    How many Commissions no longer exist but which like the Child Poverty Commssion still have answers to give?
    I give as an example the Healthcare Commission which was disbanded in 2009 and the remit was divided between the PHSO and Care Quality Commission [and possibly Monitor] but where the old Commission was far superior to that of its successor bodies in my opinion.
    Rosemary

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: