R(CPAG) v 1. Secretary of State for Work and Pensions 2. Secretary of State for Education – Child Poverty Act challenge
Proceedings for judicial review were issued challenging the government’s failure to comply with the terms of the Child Poverty Act.
Section 2 Child Poverty Act imposes a duty on the Secretary of State to ensure that the targets set out in sections 3-6 are met by the target year of 2010. Sections 3-6 set out a series of statistical targets, as follows; that less than 10 per cent of children live in relatively low-income households; less than 5 per cent of children live in combined low-income and materially-deprived households; less than 5 per cent in absolute low-income households; reduce children in persistent poverty (target to be decided by 2015).
By s 9 Child Poverty Act 2010 the Secretary of State was obliged by 24th March 2011 to publish and lay before Parliament a UK strategy describing the progress s/he considered needed to be made to meet the targets in relation to the target year. The Act also establishes a duty to set up a Child Poverty Commission, which the government had to consult on the Child Poverty Strategy. The government had not set up a Child Poverty Commission by 24th March 2011, and has still not established a Commission. On 5th April 2011 it published a strategy, which in CPAG’s view, does not describe the progress that needs to be made in relation to the targets.
Proceedings for judicial review were issued challenging the government’s failure to comply with the terms of the Act.
The government has now introduced an amendment to the Child Poverty Act in the Welfare Reform Bill so that instead of describing the progress the Secretary of State considers needs to be made to by the end of the period to which the strategy relates if the targets in ss 3-6 are to be met, he now has to “describe the measures” he considers needs to be “taken” by the end of the period. In introducing the amendment in the House of Lords on 25th January 2012 Lord Freud assured the House that: “My Lords, the amendment is intended to clarify the Child Poverty Act, not to change the substance or affect the law.”
The government also proposes to introduce a reformed Commission which would have a reporting, rather than an advisory role.
Counsel in this case was Richard Drabble QC.
This case was heard on 11th July 2012.
Judgment was given on 17th July 2011. The court upheld CPAG’s argument that the strategy did not comply with section 9(1) because the Secretaries of State did not obtain the advice of the Commission before producing it. The government decided not to set up a Commission in anticipation of new legislation they proposed to introduce setting up a reformed Commission. The court held that the executive was not entitled as a matter of law to ignore or fail to comply with legislation that parliament had passed.
However, the court found against CPAG on its second point that the strategy did not comply with the requirement under s 9(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. 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 content of the strategy was not irrational. 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.
The judge granted a declaration that “in producing the document A New Approach to Child Poverty: Tacking the Causes of Disadvantage and Transforming Families’ Lives, the Secretaries of State did not discharge the duty contained in s 9(1) of the Child Poverty Act 2010 because the duties contained in s 10(1) and 10(3) of the Act were not complied with”.