CONSTITUTIONAL ISSUES ADDRESSED IN R(CHESTER) V

Identify and critique the constitutional issues addressed in R(Chester) v Secretary of State for Justice [2009] EWHC 2923 (Admin) (28th October 2009)

Constitutional issues addressed in R(Chester) v Secretary of State for Justice [2009] EWHC 2923 (Admin) (28th October 2009)

This case concerned a prisoner who applied for judicial review of a decision refusing to register him in the Electoral Register and, therefore, denying him the right to vote in an election. C had brought the proceedings to secure his right to vote in a future election by which time new legislation would be place to deal with the claimant's situation.

The court held that where a United Kingdom court had made a declaration of incompatibility pursuant to section 3(1) of the Human Rights Act 1998 relating to legislation and where the Government was in the process of putting forward legislation to Parliament and no further vindication of the claimants rights was necessary, the court would not exercise its discretion so as to make a further declaration of incompatibility in respect of the same or similar legislation. Paragraphs 25 and 26 of this decision summarise what happens to child benefit entitlement when a couple separates. In this context it should have mentioned the decision of Collins J. in the Administrative Court in R on the application of Chester v Secretary of State for Social Security [2001] EWHC 1119. At the time that case was decided the Secretary of State for Social Security, not HMRC, was responsible for the administration of child benefit, although the rules governing entitlement were essentially the same. The facts in Chester were very similar, but not identical, to those in the present case. A couple with two children had separated. The children spent term times and half the holidays with their father, and weekends and half the holidays with their mother. Following their separation, child benefit was paid to the father as the primary carer. (Loughlin M Sword 2009 Pp. 67)

The mother applied for judicial review of that decision, as there was no right of appeal. At the time in question the definition of “family” included a child for whom the claimant was responsible and who was a member of the same household (section 137(1) of the 1992 Act). In addition, the applicable amount, used to calculate income support entitlement, included personal allowances for any child or young person who was “a member ...