Supreme Court holds that public authorities may disapply secondary legislation in cases of incompatibility with the Human Rights Act

In RR v Secretary of State for Work and Pensions [2019] UKSC 52, the Supreme Court has dealt with an important constitutional question on the powers of public authorities and tribunals. In its judgment handed down today, it held that a public authority, court or tribunal can disapply a provision of subordinate legislation which would otherwise result in their acting incompatibly with rights under the European Convention on Human Rights where this is necessary to comply with the Human Rights Act (“HRA”).

HSF acted for three charities – Liberty, Child Poverty Action Group, and Public Law Project – who jointly intervened before the Supreme Court.

Key points

  • Secondary legislation is subordinate to the requirements of an Act of Parliament. Consequently, where provisions in secondary legislation produce outcomes that are contrary to the requirements of an Act of Parliament, a public authority, court, or tribunal can disapply such a provision.
  • In a human rights context, as a general rule, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded.

Background

This case is the latest in a line of decisions relating to the judicial review of the regulations governing the removal of the spare room subsidy for people in social housing (colloquially known as the “bedroom tax”). The bedroom tax is effectively a percentage reduction in the eligible rent if the number of bedrooms in social sector properties exceeds a certain defined number calculated in line with regulation B13(5) and (6) of the Housing Benefit Regulations 2006 (“the Regulations”). In 2016, the Supreme Court in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 held that regulations B13(5) and (6) led to unjustified discrimination on the ground of disability to the extent that they did not cater for a “a transparent medical need for an additional bedroom” (“Carmichael SC”). The relief granted was a declaration that the claimant had suffered discrimination contrary to article 14 of the Convention.

In response to the decision, the Respondent introduced the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI 2017/213) which were intended to cater for the instances in which the Supreme Court had held that the previous version of regulation B13(5) and (6) led to violations of a ECHR (the “Amended Regulations”). They came into effect on 1 April 2017 and were not retrospective.

However, there remained a number of cases before local authorities and tribunals that related to the period between the relevant provisions of the Regulations coming into force in 2013 and the Amended Regulations coming into force in 2017.

Facts

The initial claim leading up to today’s decision was also brought by the Carmichaels. They argued that they needed a second bedroom due to Mrs Carmichael’s medical condition. This was not a situation contemplated by the Regulations. The local authority in question, Sefton Borough Council, applied regulation B13 and decided that, because they were a couple, they were only entitled to one bedroom and consequently applied the 14% reduction contemplated in the Regulations.

The Carmichaels successfully challenged this decision in the First-tier Tribunal (FTT) in 2014. The FTT’s rationale was that in light of the interpretative obligation under section 3(1) of the HRA, regulation B13(5)(a) should be read so as to apply either to a couple or to one member of a couple who could not share a bedroom because of the disability of one of them.

The government pressed on with its challenge to the FTT decision, notwithstanding the fact that by this time the Supreme Court in Carmichael SC had found that the Regulations as applied in cases such as that of the Carmichaels led to a breach of Convention rights. The Upper Tribunal (UT) confirmed the decision of the FTT, albeit for slightly different reasons (“Carmichael UT”). Even though it concluded that the FTT’s reading of the Regulations (i.e. to effectively read in wording that was not present in the legislation) was impermissible, it found that the Carmichaels’ housing benefit was to be calculated without applying the reduction because to do so would be a clear breach of Convention rights contrary to section 6(1) of the HRA. The Court of Appeal overturned this decision and found that adopting the UT’s approach would amount to an impermissible rewording of the Regulations (SSWP v Carmichael and Anr [2018] EWCA Civ 548, “Carmichael CA”). The majority in the Court of Appeal concluded (with Leggatt LJ dissenting) that lower tribunals would have to apply the Regulations in their original form, with the only remedy available being a claim for damages under section 8(2) of the HRA.

RR had similar proceedings ongoing in parallel, and the FTT had reached the same conclusion in that claim as it had with the Carmichaels. Following the decision in Carmichael CA in 2018, the UT was bound to allow the government’s appeal. However, it also granted RR a ‘leapfrog’ certificate to appeal directly to the Supreme Court.

Judgment

The key question before the Supreme Court was the effect of the Court’s decision in Carmichael SC on local authorities and tribunals hearing claims relating to periods before the Amended Regulations were introduced in 2017. In such cases, local authorities and tribunals were faced with two options: (1) to apply the Regulations in their original form despite the fact that doing so would result in a breach of convention rights; or (2) to calculate the housing benefit without applying the reduction as the tribunals had done with both the Carmichaels (in the FTT and UT) and RR (in the FTT). The Court termed this an “important constitutional question”.

Lady Hale’s judgment (with which all the other judges concurred) rejected the reasoning of the majority in Carmichael CA. It found that there is “nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. In doing so, the decision has reaffirmed the primacy of Acts of Parliament, and specifically, the clear requirements of the HRA. The Court, does, however acknowledge that there may be situations where the statutory scheme cannot work without the offending provision, but does not go on to explain how such a situation should be dealt with.

The Court relied upon the distinction between primary and secondary legislation in the context of the HRA. While it is unlawful for a public authority to act in a way which is incompatible with a convention right (section 6(1) of the HRA), there is an exception in section 6(2) if the public authority is compelled to act in a certain way as a result of a provision of primary legislation. The Court observed that no such exception exists when it comes to secondary legislation such as the Regulations. The Court also pointed to a number of cases where the English courts have held that a provision of subordinate legislation which results in the breach of a Convention Right must be disregarded.

Comment

This decision is a significant judgment on the constitutional status of the HRA. It is also likely to have implications well beyond the welfare benefits context in so far as it clearly sets out how local authorities and tribunals can deal with situations in which secondary legislation is incompatible with Convention rights.

In particular, with the raft of Statutory Instruments required from the government in advance of Britain’s exit from the European Union (often with minimal legislative oversight), this judgment is likely to act as an important safeguard against any new regulations that produce an outcome which is incompatible with Convention rights and the HRA.

 

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6440

Herbert Smith Freehills hosts Public Law Project conference on public law and technology

On 30 October 2019, the Administrative & Public Law team hosted over 200 attendees at a conference organised by the Public Law Project (PLP), a charity focused on promoting the rule of law and improving access to justice.

The theme of this year’s annual “Judicial review trends and forecasts” conference was “Public law and technology” and included a full day of talks focused on the fast developing area of public law which is impacted by the emerging use of technology in the public sector. The conference was also supported by Blackstone Chambers.

The first plenary session of the day was a round-up of the top public law cases of the year, presented by Mark Smyth (Senior Associate, Herbert Smith Freehills), Alison Pickup (PLP) and Tristan Jones (Blackstone Chambers). The cases covered included a range of significant Supreme Court decisions on constitutional matters and human rights, including the high profile case of R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41, in which Herbert Smith Freehills acted for Sir John Major as an intervener in the case. Mark’s presentation primarily focused on recent key cases relating to privacy and the disclosure or processing of personal information by public bodies, which linked closely to the conference’s theme of technology in public law. The session concluded with Mark’s reflection on how, once again, in the past year, public law has been at the forefront of mediating different rights and interests in some of the most significant issues faced by society.

During the morning breakout sessions, Andrew Lidbetter (Head of the Administrative & Public Law team at Herbert Smith Freehills) presented an update on judicial review of the regulators. The session considered the key developments over the last 12 months in regulatory judicial review and provided an overview of important cases in the areas of illegality, irrationality, legitimate expectations and procedural fairness. This linked into a separate presentation on the impact of Brexit on the area.

Also representing Herbert Smith Freehills amongst the speakers at the conference was Dan Hudson, a Partner in the firm’s corporate crime and investigations team with expertise in business and human rights. Dan joined a panel of other experts on anti-trafficking to discuss the role of digital technology in tackling modern slavery and the interaction between the Modern Slavery Act, public law and technology.

The rest of the day was filled with contributions from excellent high-profile speakers including Mrs Justice Cockerill, Lord Anderson of Ipswich KBE QC and Joanna Cavan OBE (Director of Strategy, Policy and Engagement at GCHQ) alongside numerous leading barristers, representatives from non-governmental organisations, experts and academics.

Materials from the conference will be made available on PLP’s website in due course.

The Administrative & Public Law team look forward to hosting our next event with PLP which will be a training session on “How to do judicial review” on 20 November 2019, in conjunction with Brick Court Chambers.

 

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Claire Hall
Claire Hall
Associate
+44 20 7466 2354