CPAG’s Child Poverty Act challenge
CPAG challenged the government’s approach to the Child Poverty Act in the High Court, and achieved a declaration that it had acted unlawfully (R (CPAG) v Secretary of State for Work and Pensions and Secretary of State for Education1). Sarah Clarke explains the history to the case.
The Child Poverty Act (CPA) was enacted with all-party support on 25 March 2010 in the last days of the Labour government. It is a new kind of legislation, an Act ‘to set targets relating to the eradication of child poverty’. Section 2 imposes a duty on the Secretary of State to ensure that the four statistical child poverty targets are met in relation to the target year, which is the financial year beginning with April 2020.
Section 8 of the Act obliged the government to set up a Child Poverty Commission. Section 9 required it to publish and lay before Parliament its first UK strategy within a year from enactment. Section 9(7) said the strategy had to describe the progress the Secretary of State considered needed to have made by the end of the period to which the strategy relates, if the targets are to be met. There was no time limit for setting up the Commission, but s10 of the CPA obliged the Secretary of State to request, and have regard to, advice from the Commission in preparing the strategy. This meant in effect that the Commission had to be set up within a year of the enactment of the CPA.
The Coalition government was formed on 12 May 2010. The relevant Secretaries of State decided not to set up a Child Poverty Commission, because they planned to introduce legislation setting up a reformed Commission including social mobility in its remit. The Commission would no longer have an advisory role, but instead would report on progress towards reducing child poverty and improving social mobility.
On 5 April 2011, after commissioning a number of expert reports and after a consultation process, the government published its first ‘strategy’: A New Approach to Child Poverty: tackling the causes of disadvantage and transforming families lives. The Act had been breached because the strategy was published late, and a Child Poverty Commission had not been set up and consulted. Moreover, the strategy contained no statistical or other analysis of how the targets in s2 were to be achieved. Indeed, several of the policy measures it referred to, in particular the housing benefit cuts and other measures, were likely to increase child poverty.
CPAG issued proceedings for judicial review. We were concerned that if the Act was ignored, this would make effective action to reduce child poverty much less likely. We argued:
1. that the strategy did not comply with s9 because the Secretaries of State did not obtain the advice of the Commission before producing it;
2. that the strategy did not comply with the requirement under s9(7) of the CPA to describe the progress the Secretary of State considered needed to be made by the end of the period to which the strategy relates.
In the meantime, the government amended the Child Poverty Act to provide for the establishment of the Child Poverty and Social Mobility Commission. Moreover, at short notice it introduced an amendment in the Welfare Reform Act which removed the word ‘progress’ from s9(7) and replaced it with ‘measures’. The Child Poverty and Social Mobility Commission has not yet been set up at the time of writing.
Permission to apply for judicial review and a protective costs order were granted on 10 November 2011. The case was heard by the Hon Mr Justice Singh on 11 July 2012. On 17 July 2012 he gave judgment.
On the first point, Mr J Singh found in CPAG’s favour. He pointed out that the executive, that is the government, was not the same as Parliament. The executive was not entitled as a matter of law to ignore or fail to comply with legislation that Parliament had passed. It was not entitled to pre-empt the will of Parliament by anticipating what legislation Parliament might or might not pass if invited. There was therefore a clear breach of the Act.
He then went on to consider the caselaw on whether this was sufficiently serious to invalidate the act in question. He found it was. Previous caselaw had made a distinction between mandatory and discretionary requirements imposed by Parliament. In R v Soneji, this was considered, but the Court took the view that this approach had outlived its usefulness. It held that ‘the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.’2
In that case Lord Rodger drew an analogy with a scenario in which a parent asks a child to be home by 11pm. That did not mean that if the child is not home by 11pm she should not come home at all. If she is not home by 11pm, her obligation is to come home as soon as possible after that. This was contrasted with a scenario where a parent asks a conjuror to perform at a child’s birthday party. In that situation, if the conjuror does not turn up on the right day, he cannot fulfil his obligation by coming on a different day.
The judge went on to consider Howker v Secretary of State for Work and Pensions  EWCA Civ 1623, a case in which the Social Security Advisory Committee did not consult on changes to the incapacity benefit regulations because the then DSS had misrepresented their effects. In that case the Court held tha3t this failure to consult invalidated the change to the regulations. This case was relevant in that it helped to show that failure to consult a Commission was important.
The judge held that therefore this was a case where Parliament intended that failure to consult the Commission meant that the strategy was unlawful.
On the second ground raised by CPAG, he held that the word ‘strategy’ in the Act had no special meaning, and so the test for whether it was lawful or not was one of rationality. The strategy contained sufficient content to meet this test, and was therefore not irrational. Paragraph 2.24 of the strategy, which asserts (without evidence) that universal credit will lift 350,000 children out of poverty, was appropriate to include to comply with the duty in s9(7). CPAG might criticise the detrimental effect other policies listed in the strategy may have, but the Courts had held that the executive was accountable to the Courts for the lawfulness of its conduct, but was only accountable to Parliament for its policies. See for instance the judgment of Lord Diplock in Grunwick Processing v ACAS.4 The content of the strategy was a matter of government policy, and the Court could not interfere with this unless it was irrational.
The judge then turned to the issue of remedies. This was a difficult issue because the legislation had now been amended so there was no longer a requirement in the legislation for a Commission to be consulted. He considered the Court of Appeal’s decision in R(Hurley and Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin), a case about the government’s decision to allow universities to charge increased tuition fees. In that case the Court found there was a breach of the public sector equality duty in the preparation of the regulations which had the effect of increasing tuition fees – these were not quashed or declared unlawful. Instead the Court considered it proportionate to make a declaration that the Secretary of State had failed to carry out his duties. The factors which were important to the exercise of the Court’s discretion having regard to all the circumstances were as follows:
- the importance of maintaining the rule of law;
- the requirement under s10(1) to consult the Commission was important, and it is normally inappropriate for the Court to anticipate what the outcome would be if a decision is taken again;
- the government submitted as mitigation that, although the duty to take advice from the Child Poverty Commission was not complied with, there was widespread consultation. However, there is force in the submission that the consultation requirement is separate and distinct, and the Secretary of State disabled himself by conscious decision from ever being able to take the advice of the Commission;
- it is very important that Parliament has now repealed s10(1). There will be a new Social Mobility and Child Poverty Commission whose functions are not exactly the same as those of the Child Poverty Commission from whom advice should have been taken. If the decision had to be taken again, it is difficult to see how the requirement could be complied with. The requirement to take advice has been repealed and the relevant Child Poverty Commission does not exist and will not exist.
In these circumstances the judge has granted a 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 s9(1) of the Child Poverty Act 2010 because the duties contained in s10(1) and 10(3) of the Act were not complied with’.
CPAG intends to write to the relevant Secretaries of State asking them to confirm that in light of the Court’s recognition that Parliament intended the requirement to consult a Child Poverty Commission to be an important one, they will establish an expert commission as soon as possible and ask it to review the existing strategy with a view to better fitting it to the purpose of achieving the targets in the Act.
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- 1. This article is based on our notes of the judgment that was given on 17 July 2012, which we have summarised. We do not have a transcript as yet, so have not been able to check this article for accuracy. Some of the content may be directly quoted from the judgment, but is not in quote marks, and we may have missed some caselaw references.
- 2. Lord Steyn para 23
- 3. See also R v Secretary of State for Social Services, ex p. AMA 
- 4. Grunwick Processing Laboratories Ltd and others v Advisory, Conciliation and Arbitration Service and another  1AER