Benefit cap lawful but at a cost of breaching children’s rights
Consensus of opinion was not apparent in the long awaited judgement by the supreme court in R v SG and others v Secretary of State for Work and Pensions. With a 3-2 majority finding that the benefit cap was lawful, there were diverse opinions between the dissenting Lords and those in the majority, as to how Article 3.1 of the United Nations Convention on the Rights of the Child, was relevant to the assessment of proportionality for the alleged breaches of articles 14 and 8 of the ECHR.
There was little solace to be had in the finding that there was a breach of Article 3.1. which provides;
in all actions concerning children … the best interests of the child shall be a primary consideration
as Lord Carnworth concluded that the breach of Article 3.1, should be played out in the political rather than the legal arena, Lady Hale dissenting, found the breach of Article 3.1 was relevant to the proportionality assessment for the breaches of articles 14 and 8 of the ECHR.
We are left with the unsatisfactory conclusion, that the government’s aims in introducing the cap are legitimate. The cap set at £500 a week, unrelated to rent levels, the number of children or personal circumstances, will continue to be applied. We were reminded by Lord Reed that the question of proportionality involved controversial issues and that the court should give due weight to the considered assessment of democratically-elected institution, which should be respected unless manifestly without reasonable foundation.
The lords suggested the government review the regulations in light of the breach of Article 3.1, but with even the Supreme Court split three ways on how the European Conventions applied, sadly the government has already announced it sees this as an unqualified success.