This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.

Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).

This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.

In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).

When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)

It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.

Background to the legal proceedings

Prior to the coronavirus pandemic, at the last count 1.3 million children in England were eligible for Free School Meals. This is expected to have risen between 2019-20 alongside the surge in Universal Credit claims although figures are not available. Data gathered by the Food Foundation on food insecurity levels during the UK Covid-19 lockdown showed that, among households with children, the prevalence of food insecurity has increased from 5.7% to 11.0% (not including food insecurity resulting from shortages in supermarkets).

On 4 June 2020 the Government announced (to journalists) the decision that the voucher scheme would not continue through the summer holidays. On 8 June, Sustain (a charity) and the Good Law Project (a not-for-profit) wrote to the Secretary of State for Education and asked for the reasons for that decision and subsequently began to initiate legal action.

Legal grounds

Sustain and the Good Law Project sought to challenge the Secretary of State for Education’s decision not to provide FSM in England during the 2020 school summer holiday. They intended to do using the Education Acts 1996 & 2002, the Children Act 2004, the Equalities Act 2010, and the Human Rights Act 1998 and relevant case law. For brevity I will explain only the human rights grounds here.

Human Rights Grounds

Regarding human rights, ECHR Articles 3, 8, and 14 were invoked. In relation to Article 3 it was proposed that the consequences of a failure to provide Free School Meals to eligible children over the summer holiday is that many of them will suffer inhuman or degrading treatment pursuant to Article 3. The threshold for Article 3 is high, but those affected will be children experiencing pre-existing disadvantage and for whom FSM is their principle source of nutrition.

In relation to Article 8, the right to respect for private and family life, it was argued that the inability to feed themselves will interfere significantly with the children’s private and family life under Article 8. Citing Lord Wilson:

it cannot seriously be disputed that the values underlying the right of … respect for … family life include those of a home life underpinned by a degree of stability, practical as well as emotional, and thus by financial resources adequate to meet basic needs, in particular for accommodation, warmth, food and clothing.

R (DA) v SSWP [2019] UKSC 21, [2019] 1 WLR 3289

Article 14 (the right to be free from discrimination) applies in conjunction with other ECHR rights — in this case Articles 3 and 8. Race discrimination, the status of being a child, and in particular a child eligible for FSM, are relevant statuses for the purposes of Article 14 (see e.g. Mathieson v SSWP [2015] UKSC 47, [2015] 1 WLR 3250).

ECtHR Jurisprudence on Responsibility for Food Provision

As the government U-turn thus far prevented the legal action from progressing, full consideration of the legal implications did not take place. The European Court of Human Rights jurisprudence on responsibility for food provision is presently limited and relates to where lack of adequate food provision affects other rights such as health, education or freedom of conscience and religion.

However, the jurisprudence suggests that where lack of adequate food provision impacts on other rights such as health, religion, or education, it may amount to a human rights violation/s (Jakóbski v Poland 2010; Vartic v Romania (no. 2) 2013; Case of Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania 2014).

Traditionally that category was restricted to public institutions such as prisons, schools, care-homes, hospitals etc. where individuals required assistance to access food. The Covid pandemic has significantly expanded the category of individuals who have restricted access to the market and require state assistance to access food physically and economically. We may therefore expect the ECtHR to expand the scope of state responsibility for food provision in pursuance of protection of Convention rights.

Conclusion

The coronavirus pandemic has exposed the vulnerability of our market orientated food system which can supply but not necessarily distribute fairly or meet particular social or cultural needs. Consequently, the category of situations considered to fall under governmental responsibility widens. Whilst the third sector (food banks) often cover these needs, the government escapes accountability.

In this instance, by U-turning on the decision to not provide Free School Meals over the summer the UK government escaped litigation that could have clarified government responsibility for food provision. Yet yesterday’s Commons vote indicates that the issue has not gone away. As the number of people who require assistance with food provision, physically or economically grows, the legal blackhole surrounding responsibility for food provision will surely grow as a public law concern.

Dr Kirsteen Shields is a Lecturer in International Law and Food Security at the University of Edinburgh

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