PhD in Law | Draft Research Proposal 1

I am applying to study for a PhD in law. The first stage of the application is to write a research proposal. The first draft of my research proposal is below. The research proposal went through a number of iterations. The final research proposal is here. Or there’s the second draft here.


Research questions and focus

Three austerity litigation cases on welfare benefits have been decided by the Supreme Court relating to: benefit sanctions,1 the benefits cap,2 and the bedroom tax.3 The cases encompass a number of first instance and appellate decisions. There are subsequent Court of Appeal decisions in these areas and it is likely, though not certain, there will be further Supreme Court decisions as the research progresses.

While the welfare benefits litigation is the intended focus, it may be that other austerity litigation is relevant to the research question. There are, for example, the cases on access to justice.4 These cases, raising issues of policy about which the judiciary may feel more assertive, may cast light upon the welfare benefits decisions.

The research will also focus on the issues raised in the next section. And, more broadly given the above litigation, relevant instruments of international law (for example, United Nations Convention on the Rights of the Child); and the emerging constitutional jurisprudence on the rule of law and the distribution of sovereignty in the UK.

Background to the proposal

Austerity and the radical changes to welfare benefits and tax credits

The global financial crisis hit the UK in 2007-08.5 UK financial institutions were exposed to US sub-prime mortgage securities which collapsed in value, triggering huge volatility in global financial markets. Several UK banks and building societies ran out of money and were nationalised or taken over. Financial institutions responded to the crisis by limiting lending, depressing demand and investment. The UK fell into a deep recession. As the financial crisis was transmitted to the wider economy, output shrank by six percent in real terms in the five quarters from the end of 2007.

In 2008 and 2009, the Labour government adopted a range of anti-cyclical measures to counter the recession, for example by cutting the rate of VAT and bringing forward increases in benefits and spending. The Bank of England reduced interest rates to 0.5%. The government maintained expenditure as income fell and the national debt increased rapidly in absolute terms and as a percentage of GDP.

When the Conservative/Liberal Democrat Coalition government came to power in 2010 there was a sharp shift from economic stimulus to austerity. Reductions in public spending were presented both as a ‘painful political necessity that would bear long-term gains, and as an ideological rejection of social protection, which was portrayed as resulting in irresponsible behaviour on the part of the poor.’6

Austerity was not applied equally across functional spending areas. Two major areas of expenditure – health and schools – were ring-fenced. And pensions were protected by the ‘triple-lock’, a guarantee to increase the state pension by inflation, average earnings or 2.5%.

The cuts were largely concentrated on social security spending on the working aged and children. Some of the cuts, such as the freezing of child benefit, were achievable under existing legal powers. But: the most significant spending reductions required primary legislation: the Welfare Reform Act 2012 (WRA 2012).

The WRA 2012 made radical changes to benefits and tax credits. Universal credit (UC) replaces income support, income-based jobseeker’s allowance and income-related employment and support allowance, housing benefit, child tax credit and working tax credit.7 Disability living allowance was replaced by the personal independence payment (PIP).8 Claimant commitments and sanctions were introduced for the benefits to be replaced and UC.9 Housing benefit for tenants in the private rented sector was capped and restricted for tenants in the social rented sector (the ‘bedroom tax’).10 A benefit cap linked to average earnings of working households was introduced.11 Council tax benefit was abolished,12 as were community care grants and crisis loans.13

Austerity continued under the Conservative government elected with a narrow majority in 2015. Further changes to reduce spending were, or are to be, implemented. These include a reduction in the benefit cap, a four-year benefit freeze, and a two-child limit for child tax credit and UC.14

Although the changes were, and continue to be, presented as an economic necessity to ‘balance the books’, they are plainly policy choices. Certain spending was protected for political reasons. The UK’s devolved administrations have chosen not to implement the cuts or have effectively mitigated them. There have been clear statements made by senior figures in the Coalition government on the political calculus which underpinned the cuts.15

The relationship between the judiciary and politics

The most extensive study of the relationship between the judiciary and politics is John Griffith’s The Politics of the Judiciary, which ran to five editions between 1977 and 1997. Griffith (1918-2010) was Professor of English Law (1959-70) and Professor of Public Law (1970-84) at the LSE. The successive editions use case law – the judges’ own words – to unpick judicial decision making.

Griffith argued that the development of the common law and the interpretation of legislation provided significant scope for judicial creativity. He also rejected the idea of judicial neutrality: judges cannot avoid making political decisions in cases which raise policy questions. He adopted a thematic approach looking at cases relating to industrial relations, public law and individual liberties. His position was that the background, education, training, practice and appointment of the senior judiciary meant they acquired ‘a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represent the public interest.’16

Griffith concluded that judicial creativity was exercised in accordance with the judiciary’s conception of public interest. And that view of the public interest was conservative or mainstream mid-20th Conservative when it came to: the interests of the state; the maintenance of law and order; and the social and political issues of the day. It might now be wondered why Griffith’s conclusions attracted the controversy they did.

Since the final edition of The Politics of the Judiciary, there have been major changes shifts in the legal landscape, some of which were foreshadowed by, and some of which received encouragement from, Griffith’s arguments.

The Human Rights Act 1998 (HRA 1998) brought the rights in the European Convention on Human Rights and Fundamental Freedoms (the Convention) into direct domestic effect. Its provisions include: requiring primary legislation to be given effect in a way compatible with the Convention rights; allowing for a declaration of incompatibility where this is not achievable; and making it unlawful for a public authority to act in a way which is incompatible with a Convention right.17

The HRA 1998 and the Convention jurisprudence widens the scope for judicial creativity and requires the judiciary to adjudicate claims brought against public authorities, many of which squarely raise political and social issues.

The common law principles of judicial review have continued to develop. The most significant of these is the acceptance and application of the principle of proportionality.18 It has been argued that public law had, before the HRA 1998, started to adapt to proportionality.19 The HRA put the adaptation beyond doubt and the principle further widens the scope of, and opportunities for, judicial creativity.

Griffith’s High Court judges were appointed on the invitation of the Lord Chancellor following consultation with existing judges, a process which led to the senior judiciary being described as a ‘self-selecting oligarchy’. The Constitutional Reform Act 2005 made significant changes and appointment to the senior courts follows an open selection process on the basis of merit having regard to the need to increase diversity.20 The turnover of judicial human resources has been accelerated by the imposition of retirement at 75 years which was then lowered to 70.21 Judges appointed before 1 April 1996 may choose to retire at 75 and turnover will accelerate further as these judges retire.

To give an indication of the changing pattern of appointment, of the current 69 High Court judges, more than 50 have been appointed after selection exercises undertaken by the Judicial Appointments Commission. While strands of Griffith’s conclusions on the homogeneity of the senior judiciary remain plainly true, they are undoubtedly less homogenous in terms of gender, ethnicity, background and practice.

Research methods to be used

The research methods to be used broadly relate to the research work which needs to be undertaken.

The first area of work is a review of the academic and professional literature on judicial decision making. The drafting of this research proposal was hampered by poor access to legal and academic journals. The problem is not identifying material, but following the trail and accessing material. There is a substantial body of literature on judicial decision-making after The Politics of the Judiciary. Further, the relaxation of the Kilmuir Rules in 1987 and the lowering of the judicial retirement age seems to mean more material is generated than was historically the case.

The second area of work is the analysis of the litigation. This will include pre-austerity litigation for historical context and analysis of the selected austerity litigation. My approach to this is conditioned by Stephen Sedley’s view on English litigation:

In a process which is not single-mindedly devoted to finding the truth, everything depends on which of the competing versions of the known facts or contentions is more credibly presented. The court’s search, and therefore the advocate’s, is not for truth but for verisimilitude. Equally the pursuit of justice takes the form of filtering what pass for facts through a gauze of rhetoric. It is a mistake, moreover, to think of advocacy as confined to advocates. In the UK, one of the great advantages of a barrister-fed judiciary is that the art of advocacy – the greatest of which is reasoning from a given conclusion – go on being deployed in the formulation of judgements and summing upon.22

My expectation is that access to documents filed at court in the austerity litigation will help pierce the gauze of rhetoric. Seeing how the judges have graded and sorted the information from the parties (to arrive at the given conclusion?) is as useful as what is said in the judgements. There is a right of inspection of Supreme Court documents.23 There seems to be no reason in principle why the parties to the litigation would refuse access to their bundles, with appropriate undertakings if required. Access is, of course, made much easier in that the documents are stored electronically.

Timetable

I expect the first area of work (literature review) to take approximately six months. And the second area of work (analysis of the litigation) to take approximately 12 months. Which leaves 18 months for writing up the research.


Bibliography

Bingham T, The Business of Judging, Selected Essay and Speeches (OUP 2000)

Bingham T, The Rule of Law (Allen Lane 2010)

Cantillon B and others (eds), Children of Austerity: Impact of the Great Recession on Child Poverty in Rich Countries (UNICEF/OUP 2016)

Child Poverty Action Group, Welfare Benefits and Tax Credit Handbook 2013/2014 (CPAG 2013)

Child Poverty Action Group, Welfare Benefits and Tax Credit Handbook 2014/2015 (CPAG 2014)

Child Poverty Action Group, Welfare Benefits and Tax Credit Handbook 2015/2016 (CPAG 2015)

Child Poverty Action Group, Welfare Benefits and Tax Credit Handbook 2016/2017 (CPAG 2016)

Griffith J A G, The Politics of the Judiciary (5th edn, Fontana Press 1997)

Sedley S, Ashes and Sparks: Essays on Law and Justice (CUP 2011)

Sedley S, Lions Under the Throne: Essays on the History of English Public Law (CUP 2015)

Footnotes

  1. R (Reilly and another) v Secretary of State for Work and Pensions [2013] UKSC 68.
  2. R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16.
  3. R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58.
  4. R (The Public Law Project) v Lord Chancellor [2016] UKSC 39 on the residence test for legal aid and R (UNISON) v Lord Chancellor [2017] UKSC 51 on Employment Tribunal fees.
  5. The material on the recession owes much to Jonathan Bradshaw, Yekaterina Chzhen and Gill Main, ‘Impact of the Recession on Children in the United Kingdom’ in Bea Cantillon and others, Children of Austerity: Impact of the Great Recession on Child Poverty in Rich Countries (UNICEF/OUP 2016).
  6. Bradshaw (n 1) 275.
  7. Welfare Reform Act 2012, ss 1 to 12.
  8. Welfare Reform Act 2012, ss 77 to 95.
  9. Welfare Reform Act 2012, ss 13 to 28 (UC) and ss 44, 49, 54, 57, 59 (other benefits).
  10. Welfare Reform Act 2012, s 69.
  11. Welfare Reform Act 2012, s 96.
  12. Local Government Finance Act 1992, s 13A substituted by Local Government Finance Act 2012, s 10.
  13. Welfare Reform Act 2012, ss 70.
  14. Welfare Reform and Work Act 2016.
  15. See, for example, Simon Hattenstone, ‘Nick Clegg: “I did not cater for the Tories’ brazen ruthlessness”’ The Guardian (London, 3 September 2016) <https://www.theguardian.com/politics/2016/sep/03/nick-clegg-did-not-cater-tories-brazen-ruthlessness> accessed 5 January 2018). Nick Clegg was quoted as saying: ‘What I found offputting was the callousness to [George Osborne’s] political calculations, particularly around welfare. Welfare for Osborne was just a bottomless pit of savings, and it didn’t really matter what the human consequences were, because focus groups had shown that the voters they wanted to appeal to were very anti-welfare, and therefore there was almost no limit to those anti-welfare prejudices.’
  16. John Griffith, The Politics of the Judiciary (5th edn Fontana 1997) 295.
  17. Human Rights Act 1998, ss 3, 4, 6 and 7.
  18. Tom Bingham’s advice in 1991 was ‘I feel it would be worth a modest investment in proportionality as a growth stock.’ Tom Bingham, The Business of Judging (OUP 2000) 97. The piece was originally published as ‘”There Is a World Elsewhere”: The Changing Perspectives of English Law’ (1992) 41 ICLQ 513.
  19. Stephen Sedley, Lions Under the Throne (CUP 2015) 197.
  20. Constitutional Reform Act 2005, ss 63 and 64.
  21. Judicial Pensions Act 1959, s 2. Amended by Judicial Pensions and Retirement Act 1993, s 26.
  22. Stephen Sedley, Ashes and Sparks: Essays on Law and Justice (CUP 2011) 156.
  23. The Supreme Court Rules 2009, r 39(3).