Free School Meals and Governmental Responsibility — Dr Kirsteen Shields

22 October 2020 by

Marcus Rashford has campaigned prominently on this issue. Image: Wikipedia

This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.

Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).

This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.

In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).

When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)

It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.

Background to the legal proceedings

Prior to the coronavirus pandemic, at the last count 1.3 million children in England were eligible for Free School Meals. This is expected to have risen between 2019-20 alongside the surge in Universal Credit claims although figures are not available. Data gathered by the Food Foundation on food insecurity levels during the UK Covid-19 lockdown showed that, among households with children, the prevalence of food insecurity has increased from 5.7% to 11.0% (not including food insecurity resulting from shortages in supermarkets).

On 4 June 2020 the Government announced (to journalists) the decision that the voucher scheme would not continue through the summer holidays. On 8 June, Sustain (a charity) and the Good Law Project (a not-for-profit) wrote to the Secretary of State for Education and asked for the reasons for that decision and subsequently began to initiate legal action.

Legal grounds

Sustain and the Good Law Project sought to challenge the Secretary of State for Education’s decision not to provide FSM in England during the 2020 school summer holiday. They intended to do using the Education Acts 1996 & 2002, the Children Act 2004, the Equalities Act 2010, and the Human Rights Act 1998 and relevant case law. For brevity I will explain only the human rights grounds here.

Human Rights Grounds

Regarding human rights, ECHR Articles 3, 8, and 14 were invoked. In relation to Article 3 it was proposed that the consequences of a failure to provide Free School Meals to eligible children over the summer holiday is that many of them will suffer inhuman or degrading treatment pursuant to Article 3. The threshold for Article 3 is high, but those affected will be children experiencing pre-existing disadvantage and for whom FSM is their principle source of nutrition.

In relation to Article 8, the right to respect for private and family life, it was argued that the inability to feed themselves will interfere significantly with the children’s private and family life under Article 8. Citing Lord Wilson:

it cannot seriously be disputed that the values underlying the right of … respect for … family life include those of a home life underpinned by a degree of stability, practical as well as emotional, and thus by financial resources adequate to meet basic needs, in particular for accommodation, warmth, food and clothing.

R (DA) v SSWP [2019] UKSC 21, [2019] 1 WLR 3289

Article 14 (the right to be free from discrimination) applies in conjunction with other ECHR rights — in this case Articles 3 and 8. Race discrimination, the status of being a child, and in particular a child eligible for FSM, are relevant statuses for the purposes of Article 14 (see e.g. Mathieson v SSWP [2015] UKSC 47, [2015] 1 WLR 3250).

ECtHR Jurisprudence on Responsibility for Food Provision

As the government U-turn thus far prevented the legal action from progressing, full consideration of the legal implications did not take place. The European Court of Human Rights jurisprudence on responsibility for food provision is presently limited and relates to where lack of adequate food provision affects other rights such as health, education or freedom of conscience and religion.

However, the jurisprudence suggests that where lack of adequate food provision impacts on other rights such as health, religion, or education, it may amount to a human rights violation/s (Jakóbski v Poland 2010; Vartic v Romania (no. 2) 2013; Case of Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania 2014).

Traditionally that category was restricted to public institutions such as prisons, schools, care-homes, hospitals etc. where individuals required assistance to access food. The Covid pandemic has significantly expanded the category of individuals who have restricted access to the market and require state assistance to access food physically and economically. We may therefore expect the ECtHR to expand the scope of state responsibility for food provision in pursuance of protection of Convention rights.


The coronavirus pandemic has exposed the vulnerability of our market orientated food system which can supply but not necessarily distribute fairly or meet particular social or cultural needs. Consequently, the category of situations considered to fall under governmental responsibility widens. Whilst the third sector (food banks) often cover these needs, the government escapes accountability.

In this instance, by U-turning on the decision to not provide Free School Meals over the summer the UK government escaped litigation that could have clarified government responsibility for food provision. Yet yesterday’s Commons vote indicates that the issue has not gone away. As the number of people who require assistance with food provision, physically or economically grows, the legal blackhole surrounding responsibility for food provision will surely grow as a public law concern.

Dr Kirsteen Shields is a Lecturer in International Law and Food Security at the University of Edinburgh

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.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas 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 blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 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 evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


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: