Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) (Amendment) Regulations (Northern Ireland) 2017

Debate between Baroness Lister of Burtersett and Baroness Suttie

Wednesday 6th December 2017 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I thank the noble Lord, Lord McAvoy, for bringing this regret Motion before your Lordships’ House this evening, and I echo many of the points that he raised. On these Benches, we deeply regret that the Government brought forward these caps on child tax credits. We do, however, acknowledge the establishment of certain exemptions to the cap for those who do not have the same control as others in choosing the number of children in their family—for example, in the specific circumstances of multiple births, adoption and following rape.

The Liberal Democrats would abolish the two-child limit because we believe that there is no way to enforce a two-child policy without something like a “rape clause”, which can be both degrading and humiliating for the women concerned, and because we believe that the policy can lead to an increase in child poverty, as families are punished for their decisions, which are often outside of their control. As the noble Lord, Lord McAvoy, has already said, there are several very specific circumstances surrounding current legislation in Northern Ireland that make the situation there even more unacceptable, and at times personally tragic, for many women and families.

The combination of the existing abortion laws in Northern Ireland, which mean that abortion is in effect illegal in the majority of cases, and Section 5 of the Criminal Law Act (Northern Ireland) 1967, which requires a person who becomes aware of a crime to disclose it to the police, both have a direct impact on the women concerned as well as the healthcare professionals and legal professionals who try to assist them. This is particularly relevant to these regulations due to their provisions regarding rape. Not only is abortion outlawed in Northern Ireland, including in the case of rape, but impartial advice on the subject for the victim following a rape is significantly restricted.

Women in Northern Ireland who have been raped will have access to neither abortion advice nor services. If they have a child as a result of rape, they will then have to face reliving their experience in order to access benefits for the child. Furthermore, it is still to be seen whether healthcare professionals will receive the necessary training or support when assessing victims of rape for universal credit. My colleagues in the Alliance Party in Northern Ireland have spoken to the Royal College of GPs, the Royal College of Nursing, the Northern Ireland Association of Social Workers, the British Medical Association and the Royal College of Midwives. None of those organisations has reported receiving training or support. Does the Minister agree that this is a situation which needs to be urgently rectified?

One of the most significant failings in these regulations, as the noble Lord, Lord McAvoy, has already said, is the lack of thought given by the Government to the impact of how the separate Northern Ireland legislation under Section 5 of the Criminal Law Act (Northern Ireland) 1967 would impact on victims of rape. As a result of this legislation, both the rape victim disclosing information to gain universal credit for their child, and the person they are disclosing this information to, could be open to prosecution for not reporting the crime to the police. Surely that is a totally unacceptable situation in the 21st century. The Liberal Democrats voted against the two-child limit which has caused the need for this degrading process for the victims of rape, and we continue to believe strongly that this policy should be reversed.

[Baroness Lister of Burtersett (Lab)]

My Lords, in a recent blog to mark the 50th anniversary of the Social Policy Association—I declare an interest as its honorary president—the internationally respected Professor Emeritus of Social Policy, Jonathan Bradshaw, asked:

“What is the worst social security policy ever?”.


The answer was the two-child policy. He described it as discriminatory and morally odious and noted that the exceptions would be “unpleasant to operate”. It is these exceptions that the regulations enact, but they cannot be understood or debated separately from the policy they mitigate, as the noble Baroness has explained, because they do so at potentially considerable human cost, particularly in Northern Ireland.

Analysis by the Child Poverty Action Group—again, I declare an interest as honorary president—and the Institute for Public Policy Research indicates that once universal credit is fully rolled out, the policy will result in an additional 200,000 children and 100,000 adults in poverty. It will also mean many larger families who are already in poverty—and remember that larger families are already at greater risk of poverty—will be pushed further below the poverty line, leading to greater hardship and deprivation.

Like the benefit cap, the two-child limit breaks the link between children’s needs and the support that Parliament has deemed necessary to meet those needs. Third and subsequent children are deemed less worthy of that support on totally spurious grounds. A number of organisations have argued that the policy and hence regulations contravene our international human rights obligations by in effect restricting women’s reproductive rights and discriminating against those with a faith-based objection to contraception or abortion, which is especially likely in Northern Ireland.

Will the Minister explain how the policy gives primary consideration to the best interests of those children with the misfortune of being born after two siblings? The UN Committee on Economic, Social and Cultural Rights has already expressed concern and I am pleased to say that the CPAG has been given leave to seek a judicial review of the limit on human rights grounds.

As human rights arguments do not appear to concern the Government, perhaps the likely unintended consequences will do so—that it could lead to families splitting up or lone parents being reluctant to repartner with someone who already has a child.

We are still awaiting a proper family impact statement of the policy. Earlier this year the Prime Minister answered a question on what has come to be known as the “rape clause” by invoking the “principle of fairness”, which she asserted underpinned the two-child limit because,

“people who are on benefits should have to decide whether they can afford more children, just as people in work have to make such a decision”.—[Official Report, Commons, 26/4/17; col. 1107.]

Leaving aside the erroneous assumption that these are two distinct groups and the fact that the majority of those affected will be parents in paid work because of the interaction with the benefit cap, where is the fairness in a policy that penalises families retrospectively for a decision to have another child which may have been made in more propitious economic circumstances? At least the full impact of its retrospective application will not be felt until after January 2019, when new claims from larger families will no longer be routed back to tax credits.

Where is the fairness in regulations which say that adoptive parents or kinship carers are exempt if they adopt or take on a third or subsequent child but are not exempt if they want to have a child of their own and this takes them over the limit because of the presence of an adopted or looked-after child? This was one of the issues raised by the Secondary Legislation Committee. Where is the fairness in a policy that faces a woman who is, say, pregnant because of contraception failure, with the choice between deeper poverty and an abortion; or which condemns her to greater poverty because she was unable to get an abortion due to the lack of specialist doctors—a problem highlighted recently by the president of the Royal College of Obstetricians and Gynaecologists? While the extension to Northern Irish women of the right to an NHS-funded abortion in England is welcome, exercising that right will not necessarily be easy, especially for women with limited resources or who want to keep their abortion secret for whatever reason, and we should remember that many live in small and/or rural communities. That is one reason why this policy and these regulations are particularly unfair and pernicious in a Northern Irish context.

The noble Lord, Lord Patten, referred to the parity principle, but surely parity does not mean that local circumstances cannot be taken into account. In its report on the earlier regulations, the Secondary Legislation Scrutiny Committee warned:

“The practicalities of applying these requirements in Northern Ireland will need to be fully thought through before the equivalent regulations are brought forward”.


That is some hope. Instead, as the committee notes in its latest report, they,

“exactly mirror the mainland Regulations, with the exception of the start date”.

The committee concedes that the Explanatory Memorandum “nods to the concerns” it had expressed, but observes that it is not “entirely clear”. What is clear is that the further clarification provided by the Government has not allayed concerns.

Those concerns have been clearly articulated by the Women’s Aid Federation Northern Ireland; I am grateful to Louise Kennedy for her briefing. They relate to the notorious “rape clause” exemption that we have already heard about, which now also includes a conception in the context of a controlling or coercive relationship—a rare and welcome example of the Government taking the overwhelmingly critical responses to the consultation exercise on board. However, I am advised that there is no coercive control law in Northern Ireland, nor sufficient public or professional understanding of the concept for it to provide an effective exemption there.

As the regret Motion states, and the Secondary Legislation Scrutiny Committee drew attention to, there is deep concern in Northern Ireland, as we have heard, about the interaction between the legislation and the criminal law, which could lead to the criminalisation of a woman who has been raped, or a third-party assessor where the rape is not reported to the police. Many women do not want to engage with the criminal justice system and should not be put in the position of having to make such an invidious choice. Likewise, it raises serious ethical questions for social workers and voluntary organisations accredited as third-party assessors. I believe that some are refusing to carry out such assessments, or at the very least are supporting any individual member who refuses to do so on ethical grounds.

I am aware that the Government have given assurances that no one has ever been prosecuted for not reporting a rape, and that the rape clause assessment is effectively a tick-box exercise that does not require probative questioning. Yet, as my noble friend said, Northern Ireland’s Director of Public Prosecutions has confirmed that both victims and third parties are potentially liable to prosecution. If it is just a tick-box exercise, why can the woman not simply tick the box herself without being interviewed by a third-party assessor?

The Secondary Legislation Scrutiny Committee warns that the potential threat of police involvement,

“must make it likely that some women will not claim the benefit”,

to avoid that risk. It states:

“As a result they will lose the additional funds to which they would otherwise be entitled and the policy will therefore not operate as intended”.


Other concerns raised by Northern Ireland Women’s Aid apply more widely. It argues that forcing rape victims to disclose their ordeal before they are ready can retraumatise them and exacerbate mental health issues arising from sexual assault. It states that it is,

“contrary to all good practice relating to victims of sexual abuse and is clinically unsafe”.

The BMA has condemned the policy as “fundamentally damaging to women”.

Women’s Aid also questions the requirement that the woman is no longer living with her rapist. They point out that much sexual violence and rape occurs within the context of domestic violence and is more difficult to disclose, and that leaving such a relationship is a time of particular danger. A similar concern was raised in submissions to the Secondary Legislation Scrutiny Committee, which underlined that it shared this concern. The Explanatory Memorandum acknowledges that,

“not all victims will feel able to leave the perpetrator”,

but justifies the policy on the grounds that otherwise, the alleged perpetrator could benefit financially from the abuse because of joint payment of universal credit. Surely a split payment could be made to avoid this? It seems a flimsy argument, especially given the growing difficulty that women have in accessing refuges, which is likely to be exacerbated if the threatened change to the funding regime goes ahead.

In conclusion, needless to say, I strongly support my noble friend’s regret Motion, but I regret even more the unfair and, to quote Professor Bradshaw once more, “morally odious” policy from which these regulations derive. The sooner this policy is ended, the better.