Child Tax Credit: Two-Child Limit and the Limits of Review
16 July 2021
SC, CB and 8 children, R. (on the application of) v Secretary of State for Work and Pensions & Ors  UKSC 26 (9 July 2021)
The Supreme Court has rejected a challenge against the two-child limit on the individual element of child tax credit payments. In a unanimous judgment delivered by Lord Reed, the Court held that the provision imposing the limit was not contrary to the appellants’ Convention rights.
The Court found that the rule was potentially indirectly discriminatory against women, as well as children living in households with more than two children. However, any such discrimination could be validly justified and was considered to be proportionate on the basis of ‘protecting the economic well-being of the country’.
Child tax credit is a welfare benefit scheme designed to provide financial support to families with children. The individual element of child tax credit, which is the subject of this case, entitles an individual to £2,830 per annum in respect of each child they are responsible for.
In 2015, the Conservative Party announced as part of that year’s General Election manifesto that they intended to limit a person’s entitlement to child tax credit to just two children, unless one of a narrow range of prescribed exceptions applied. This was part of a wider policy pledge to substantially reduce the amount spent on welfare benefits.
In March 2016, a bill was passed to that effect, and the limit came into force in April 2017.
This case was brought by two adult appellants and their children. The appellants were supported in their case by the Child Poverty Action Group, which had sought unsuccessfully to oppose the legislation as it made its way through Parliament.
The appellants’ central arguments were that the two-child limit was contrary to the right to family life under Article 8 ECHR and the prohibition of discrimination under Article 14.
The claim was dismissed at first instance and the appeal was subsequently rejected by the Court of Appeal. The Supreme Court was similarly unsympathetic.
First, the Court was unpersuaded by the appellants’ contention that the limit was contrary to Article 8. The appellants argued that the limit affected the reproductive choices of adults by discouraging individuals from having more than two children . The Court rejected this, stating that it was not a consequence intended by the limit, and that there was no evidence to suggest it was having that effect .
The appellants also argued that the limit would have a damaging effect on a child’s integration into their family if their parent was not entitled to receive child tax credit in respect of them . This was also rejected on the basis that there was no evidence .
Notably, the protection from discrimination under the Convention is not free-standing; it only prohibits discrimination that comes within the ‘ambit’ of another right. To establish discrimination, it must be shown that there was a difference in treatment between people in analogous situations on the basis of a relevant characteristic .
The Court accepted the appellants’ arguments that the case came under the ambit of either Article 8 or, alternatively, the right to property under Article 1 of the First Protocol to the Convention.
With respect to the other elements, the Court accepted that the provision could be indirectly discriminatory against woman as compared to men [44-46], considering that women made up 90% of single parents bringing up children . The Court also accepted that the provision could be indirectly discriminatory against children living in households with more than two children, who were disadvantaged as compared to those with two or fewer [70-72].
It was possible, however, for the measure to be justified. On this point, the Court considered three key preliminary issues .
(1) whether it was appropriate for domestic courts to determine whether the UK had violated its obligations under unincorporated international treaties;
(2) whether the standard of review in discrimination cases should be the lower, ‘manifestly without reasonable foundation’ standard; and
(3) whether the use of parliamentary material by the courts in determining compatibility with the Convention accorded with the principle of Parliamentary privilege.
The appellants argued that the two-child limit violated the UN Convention on the Rights of the Child (‘UNCRC’), which, although ratified, had never been incorporated into UK domestic law.
Lord Reed emphasised that the UK is a dualist as opposed to a monist state: ‘it is a fundamental principle of our constitutional law that an unincorporated treaty does not form part of the law of the United Kingdom’ .
He criticised some previous obiter dicta which had appeared to suggest the opposite. He pointed to the weight that many of these judgments had placed on assessing whether the UNCRC had been violated. This included Lord Wilson’s obiter argument in Mathieson v Secretary of State for Work and Pensions  UKSC 47, where he said that the relevant delegated legislation did not comply with the UNCRC, which Lord Reed thought was made ‘per incuriam’ (i.e. with a lack of due regard to the law/facts) .
Lord Reed did not suggest the UNCHR was irrelevant. He stated that consideration of whether the two-child limit respected the best interests of the child could be a relevant factor in the assessment of whether the discrimination was justified .
The Court also considered the appropriate standard to be applied when assessing proportionality. It was said that the Court should not adopt an overly mechanical approach .
For welfare benefit cases, which tended to involve concerns about social and economic policy, it was noted that the ECtHR usually gave a wide margin of appreciation to the relevant state , by asking whether the legislation was ‘manifestly without reasonable foundation’ .
Only in certain circumstances would the Court impose a higher standard. A higher standard was usually imposed in so-called ‘suspect cases’, namely those featuring more serious grounds of discrimination, such as gender or race. These would require ‘very weighty reasons’ in order to be justified .
However, again, this distinction was not so rigid as there had been cases recognising a wide margin of appreciation despite the ground being ‘suspect’, such as Schalk v Austria (2010) 53 EHRR 20. Moreover, there might be situations where ‘non-suspect’ grounds would require a higher justification, such as where the best interests of children needed to be considered . Much would depend on the individual circumstances of the case.
Importantly, the Court rejected the appellants’ interpretation of the recent ECtHR judgment in JD and A v UK  HLR 5 that suspect cases of discrimination should fall outside the ‘manifestly without reasonable foundation’ approach unless they involve ‘transitional measures’ designed to rectify past inequality . This interpretation of JD would suggest that the ‘manifestly without reasonable foundation’ standard had no place in suspect cases, outside the context of ‘transitional measures. Lord Reed could not accept that .
The Court proceeded along very traditional lines on this issue. It followed the approach laid down in Wilson v First County Trust Ltd (No 2)  UKHL 40 , that courts should rely on parliamentary material only in rare circumstances, to ascertain or confirm the purpose of legislation .
Essentially, when assessing compatibility with the Convention, courts may need to assess whether Parliament considered that the legislation would potentially infringe the Convention, but implemented it anyway . However, courts should go no further than ascertaining whether matters relevant to compatibility were raised during the legislative process. They should not assess the cogency of specific arguments raised, nor should the courts trawl through large swaths of debate records .
The Court concluded that the two-child limit was justified.
With regards to the detrimental effect the policy had on women – which is a suspect ground as it concerns gender discrimination – the Court found that the limit could be justified on grounds of economic policy . Lord Reed reached that conclusion even though he had applied the ‘very weighty reasons’ standard .
Lord Reed referred to what he saw as a rational connection between the two-child limit and the economic aim pursued, namely reducing public expenditure [192-193]. He emphasised that it was inevitable that women would be disproportionately affected by the policy because women make up so many more single parent households .
The Court also found that the discriminatory effect on children living in households with more than two children was similarly capable of justification. The standard was lower in this case because the ground was non-suspect, and therefore greater respect should be accorded to Parliament . However, because it concerned children, and the Court should consider the best interests of the children involved, the standard was higher . Nonetheless, the Court found that the economic aims justified this discrimination also.
Ultimately, for both grounds of discrimination, Lord Reed considered the matter too controversial for the Court to determine and therefore deferred to Parliament , stating that ‘the democratic credentials of the measure could not be stronger’ and that there was no reason to overturn Parliament’s decision .
Some will see this decision as evidence that the Supreme Court is more conservative, more deferential, in the post-Hale, post-Kerr era. Others might observe that the various building blocks of Lord Reed’s reasoning are relatively uncontroversial.
Paragraph 162 is striking. There, Lord Reed is scathing as to what he clearly views as the overuse of Article 14, a provision for which a wide interpretation is often contended. He was critical of the involvement of campaigning organisations in helping to bring cases like this as an attempted second bite of the cherry after unsuccessful lobbying against a bill that is later enacted as legislation.
Lord Reed’s attraction to the reasoning of the US Supreme Court in Washington v Davis 426 US 229 (1976) appears to endorse the adoption of even more deference where ‘suspect’ cases are concerned.
The Supreme Court handed down a similarly conservative judgment on the very same day, in R (on the application of AB) v Secretary of State for Justice  UKSC 28. It too was a unanimous decision in which Lord Reed gave the leading judgment.
Both cases are likely to delineate the battleground in future cases where politically controversial, social or economic measures are challenged in the courts.
Frederic Jones-Morton is a BCL Student at the University of Oxford
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