UK High Court rules that Government acted unlawfully in failing to establish and consult a Child Poverty Commission when implementing its Child Poverty Strategy
The ruling looks at the principles of Judicial Review and confirms the Court’s power to intervene in
government decision making.
The Court here held that the government was not legally entitled to fail to comply with the 2010 Child Poverty Act as under the UK constitutional system the executive has no power to make or repeal law in the absence of a delegation by parliament.
Judge Singh looked at whether the legislative requirement was “mandatory” or “directory”. If a legislative requirement is mandatory then failure to comply invalidates any decision or policy which follows. If the requirement is “directory” the following decision or policy is not invalid. The Court, in assessing whether the provision was mandatory or directory, considered whether the parliament intended invalidity.
Judge Singh held that the procedural requirement to take advice of the commission under the 2012 Act was “an important one” and breach of the requirement undermined the lawfulness of the defendants’ poverty action strategy
The challenge was successful on procedural rather than substantive grounds. The government should have followed procedure and established and consulted the commission in implementing a child poverty strategy however the substance of the strategy itself could not be challenged. The Court noted that the government is free to formulate new policy and there was nothing irrational about the strategy itself.