Keywords: PhD – law – research proposal – austerity litigation – judicial power.
I want to complete a PhD in law and have been working on the research proposal for the last six months or so. Here is the final version of my research proposal. This is, I hope, the version which is going to be accepted by the University of Sheffield. The research relates to the legal challenges to austerity in the UK and concerns about the growth of judicial power.
Bedroom tax protesters outside the Supreme Court. Thanks to Pete Riches for the photo.
Judicial power and the legal challenges to austerity in the UK.
There is a substantial body of literature concerned about the growth of judicial power in the UK. It is argued the growth unbalances the constitution, compromising parliamentary sovereignty and effective executive government, and inappropriately involves the courts in determining what are political questions. Reducing public spending – austerity – has been a major political focus of UK governments since 2010. Several of the significant changes to law and policy which implemented austerity have been challenged in the courts. The proposed research addresses whether these cases support the arguments against the growth of judicial power.
3. Research context
Judicial power in the field of public law has grown significantly since the 1950s. Developments in judicial review mean the power is now exercised more extensively, intensively and frequently.1 The Human Rights Act 1998 (HRA 1998) further increased judicial power by engaging courts in rights-based adjudication: determining if legislation and the acts of public authorities breach rights in the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
The increase in power has been accompanied by voluminous analysis and comment – political, academic and judicial. Criticisms of the expansion include: it encroaches on the settled and proper constitutional principle of parliamentary sovereignty; it impedes effective executive government; and, for a range of reasons, the judiciary or the judicial process should not be engaged in resolving what are essentially social or political questions.
Significant contributions sceptical of the growth in judicial power have come from Lord Sumption, Justice of the Supreme Court,2 and John Finnis.3 Lord Sumption argues that rights-based adjudication under the Convention – in particular as it has been developed by the European Court of Human Rights (ECHR) – has shifted the boundary between political and legal decision-making, turning matters of policy into questions of law. The effect has been to transfer legislative power to courts which lack democratic legitimacy and which, in any event, are not equipped to decide questions on the allocation of resources and the balance between individual rights and collective interests.4
Finnis expresses similar views in sharper terms. His arguments include: in relation to changing the law, the institutional design of legislatures is superior to the institutional design and procedures of even sophisticated appellate courts. Further: arbitrary decisions are the result of courts exercising the non-judicial – in the sense of law applying – task of assessing the proportionality of legislatively approved acts.
The work of the Policy Exchange’s Judicial Power Project (JPP) is framed around Finnis’ analysis. Since 2015, the JPP has published a range of material generally critical – though with room for dissenting voices – of the growth of judicial power or ‘judicial overreach’. While the arguments are contested,5 the JPP’s publications represent a major contribution to analysing the growth of, and proper limits to, judicial power.
The material includes criticism of individual courts and judges. For example, Finnis argues that the Supreme Court has increasingly constituted itself as a roving law reform commission.6 In their analysis of R (Evans) v Attorney General7 Richard Ekins and Christopher Forsyth state ‘The two majority judgements illustrate the two main ways in which some judges – but certainly not all – undercut the decisions of the executive and Parliament, privileging their own views about what should be done.’8 The JPP’s ‘About’ page refers to the ‘… willingness of some judges to adopt an adventurous understanding of their jurisdiction…’.9
That judges differ in their approach to cases involving the state has received empirical support. Research by T T Arvind and Lindsay Stirton used 30 years of House of Lords/Supreme Court non-unanimous decisions (1985 to 2015) to place individual judges on a scale of relative permissiveness in claims against the state.10 The research covers all challenges against public bodies, therefore including cases brought other than against executive government and both public and private law cases. The research appears to substantiate the view that judges differ systematically when it comes to claims against the state.
In addition to differences between judges, there are issues about shared judicial values and how these have changed. John Griffith argued that the development of the common law and the interpretation of legislation provided significant scope for judicial creativity.11 He concluded 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.’12 And that view of the public interest was conservative or mainstream mid-20th Conservative when it came to the interests of the state, and the social and political issues of the day.
Since Griffith’s work, there has been a (near) complete turnover in judicial personnel, a process accelerated by the imposition of a retirement age of 70 years.13 There have been significant changes to the way in which judges are appointed.14 While strands of Griffith’s conclusions on the homogeneity of the senior judiciary remain obviously true, they are undoubtedly less homogenous in terms of gender, ethnicity, background and practice. One aspect of the growth in judicial power has been to engage judges in questions of proportionality which require explicit balancing of individual rights and community interests. It might be expected that shifts in judicial outlook will be discernible from judgments on proportionality.
The austerity litigation
Analysis of judicial power focusses on manifestations of that power: judgements in individual cases. There are significant and growing number of cases which engage the arguments relating to the growth of judicial power which have received limited analysis. The background to these cases will be familiar: the global financial crisis hit the UK in 2007-08.15 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. This had a significant adverse impact on the UK’s public finances.
When the Conservative/Liberal Democrat coalition government came to power in 2010 it sought to improve the public finances with a programme of austerity. Austerity was a policy choice rather than economic necessity16 and a political calculus determined where cuts were made. NHS and school funding was ring-fenced. Pensions were protected by the ‘triple-lock’, a guarantee to increase the state pension by inflation, average earnings or 2.5%. The cuts were targeted at benefits for the working aged population, certain government departments (notably the Ministry of Justice) and local government.
Many of the spending reductions required legislation, most significantly the Welfare Reform Act 2010 and regulations made under that Act or earlier social security legislation. The legality of the legislation and its implementation has been tested in a series of cases determined finally by the Supreme Court. These include: R (Reilly and another) v Secretary of State for Work and Pensions (claimant participation in work or work related schemes),17 R (SG and others) v Secretary of State for Work and Pensions (the benefit cap),18 and R (Rutherford) v Secretary of State for Work and Pensions (spare room subsidy/bedroom tax).19 There are also two cases on access to justice: R (The Public Law Project) v Lord Chancellor (civil legal aid residence test),20 and R (UNISON) v Lord Chancellor (Employment Tribunal fees).21
Permission to appeal has been granted by the Court of Appeal in R (DA and others) v Secretary of State for Work and Pensions (reduced benefit cap) and the case will be heard by the Supreme Court on 17 to 19 July 2018.22 R (SC and others) v Secretary of State for Work and Pensions and others (the two-child policy),23 was decided by the High Court on 20 April 2018 and is likely to be appealed to the Supreme Court.
These cases – the austerity litigation – represent a series of direct legal challenges to executive or legislative authority and form a sufficiently large body of jurisprudence to address the following research questions.
4. Research Questions
The principal research question is whether the growth of judicial power has restricted the proper scope of legislative and executive power in the implementation of austerity: are the courts wrongly frustrating the exercise parliamentary sovereignty or governmental authority? There are a range of secondary questions which relate to the strands of the debate on the growth in judicial power.
Mark Elliott has identified the traditional parameters which limited judicial power and assessed the constitutional legitimacy of the growth of judicial power in the context of parliamentary sovereignty.24 Elliott suggests a continuum of legitimacy from powers expressly granted by Parliament (for example those created by the HRA 1998), through the development of powers which were perhaps implicitly required (for example the concept of constitutional statutes), through the growth of powers which were not required by Parliament (for example the expansion of judicial review). Finally, there is the exercise of power which directly conflicts with parliamentary sovereignty (for example interpretative approaches which effectively reverse or neutralise the will of Parliament). The decisions in the austerity cases can be located on the continuum. Similarly, given the critiques of the way in which the Convention has been interpreted expansively, the legitimacy of the claims can be analysed against the development of Convention jurisprudence.
Since the arguments against the growth of judicial power go beyond narrow constitutional legitimacy, there are questions as to whether the claims are not conducive to judicial resolution. In Lord Sumption’s terms: do the cases raise issues which can properly be said to relate to fundamental rights which ought to be protected; or political questions on the allocation of resources and the balance between individual rights and collective interests? And in John Finnis’ terms, do the judgements show courts lack institutional or procedural competence to assess proportionality in the context of legislatively approved acts? Does the litigation require the courts to balance incommensurable values?
There are also the arguments about judges and courts. Does the litigation show that certain courts or judges adopt an unreasonably expansive view of their jurisdiction in relation to the issues of law and fact raised by the cases. Has the judiciary extended or developed the law to undercut the decisions of the executive or Parliament? Have there been failures to show proper deference to parliamentary sovereignty or executive authority? And do the judgements in the austerity cases show the senior judiciary has changed in its identification of where the public interest lies?
The approach to the research is empirical: assessing the salience of the critiques of the growth of judicial power in relation to the austerity litigation. Given that the growth in judicial power has the potential to affect law and policy before it is made, analysis of the research papers and impact assessments relevant to the legal and policy changes is required. In addition to forming part of the evidential matrix to the litigation, the material may indicate the extent to which policy choices are constrained before they are made.
Two gaps in the research proposal have been identified. Firstly, the analysis of the contributions to the debate on the growth of judicial power has been limited by access to academic journals. It is anticipated that a more comprehensive review of the literature may produce additional themes for analysis.
Secondly, the research raises normative questions as to the proper constitutional relationship between the courts, the legislature and the executive. What is the legitimate scope of adjudication? There is, of course, no agreed answer to this question. I am not sure, at present, as to the analytical framework to adopt in addressing the normative assumptions which underlie the debate on the growth of judicial power.
5. Research Methods
The research is library-based in the sense that it is not intended there should be any field work.
6. Significance of Research
While austerity may now be – by some margin – only the second most important political issue of the day, it was the principal policy objective of the coalition government.25 There appears to have been limited analysis of the austerity litigation in the context of the growth of judicial power.26 Given the cases engage many of the arguments against the growth of judicial power, it is suggested this lack of analysis is a significant gap in the debate.
While the austerity litigation may lack the hard-edged constitutional significance of the cases which have attracted significant analysis, it is by no means insignificant. According to the IFS, the two child policy will, for example, affect 900,000 families pushing an additional 600,000 children into absolute poverty by 2020-21.27. A decision by the Supreme Court on the legality of how the two child policy affects certain groups will attract significant attention. The research is timely.
Bingham T, The Business of Judging, Selected Essay and Speeches (OUP 2000).
Bingham T, The Rule of Law (Allen Lane 2010).
Bogdanor V, The New British Constitution (Hart 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).
Sedley S, Law and the Whirligig of Time (Hart 2018)
Journals, research papers and speeches
Arvind TT and Stirton L, ‘Legal Ideology, Legal Doctrine and the UK’s Top Judges’  PL 418. (available as a Newcastle University ePrint <https://eprint.ncl.ac.uk/218168> accessed 22 May 2018.
Cora Chan, ‘A Preliminary Framework for measuring deference rights Reasoning’ (2016) 14 IJCL 851.
Paul Craig, ‘The Nature of Reasonableness Review’ (July 2013) Oxford Legal Research Paper Series 78/2013, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2298612> accessed 22 May 2018.
Paul Craig, ‘Proportionality and Judicial Review: a UK Historical Perspective’ (June 2016) Oxford Legal Research Paper Series 42/2016, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2796028> accessed 22 May 2018.
Paul Craig, ‘Judicial Power, the Judicial Power project and the UK’ (December 2017) Oxford Legal Research Paper Series 68/2017, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3080385> accessed 22 May 2018.
Lord Dyson, ‘Are the judges too powerful?’ (Bentham Association Presidential Address, London, 13 March 2014) <https://www.ucl.ac.uk/laws/sites/laws/files/dyson_2014.pdf> accessed 22 May 2018.
Richard Ekins and Christopher Forsyth, ‘Judging the Public Interest: The Rule of Law vs, the Rule of Courts’ (September 2016) Cambridge Legal Studies Research Paper Series 49/2016, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845448> accessed 22 May 2018.
Sir Patrick Elias ‘Judicial Scepticism from the Left: Some Thoughts’ (Judicial Power Project, 29 May 2018) <http://judicialpowerproject.org.uk/sir-patrick-elias-judicial-scepticism-from-the-left-some-thoughts> accessed 3 June 2018.
Mark Elliott, ‘From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification’ (May 2015) Cambridge Legal Studies Research Paper Series 27/2015, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2605357> accessed 22 May 2018.
Mark Elliott, ‘Judicial Power and the United Kingdom’s Changing Constitution’ (October 2017) University of Cambridge Faculty of Law Research Paper No. 49/2017, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3055862> accessed 12 June 2018.
Mark Elliott, ‘Judicial Power in Normative, Institutional and Doctrinal Perspective: A Response to Professor Finnis’ (Jan 2016), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2720907> accessed 22 May 2018.
Richard Ekins and Graham Gee ‘Putting Judicial Power in its Place’ (2017) 36 University of Queensland Law Journal 375.
John Finnis, ‘Judicial Power: Past, Present and Future’ (Lecture at Gray’s Inn Hall, London, 20 October 2015) <http://judicialpowerproject.org.uk/wp-content/uploads/2015/10/John-Finnis-lecture-20102015.pdf> accessed 22 May 2018.
John Griffith, ‘The Political Constitution’ (1979) 42 MLR 1.
John Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159.
Lady Hale, ‘The UK Supreme Court in The United Kingdom Constitution’ (Inaugural Lecture at the Institute for Legal and Constitutional Research, University of St Andrews, 8 October 2014) <https://www.supremecourt.uk/docs/speech-151008.pdf> accessed 22 May 2018.
Lady Hale, ‘The Supreme Court: Guardian of the Constitution?’ (Sultan Azlan Shah Lecture 2016, Kuala Lumpur, 9 November 2016) <https://www.supremecourt.uk/docs/speech-161109.pdf> accessed 22 May 2018.
Lord Sumption, ‘Judicial and Political Decision-Making: The Uncertain Boundary’ (F A Mann Lecture), November 2011 <http://www.pem.cam.ac.uk/wp-content/uploads/2012/07/1C-Sumption-article.pdf> accessed 24 April 2018
Lord Sumption, ‘The Limits of Law’ (Sultan Azlan Shah Lecture 2013, Kuala Lumpur, 20 November 2013) <https://www.supremecourt.uk/docs/speech-131120.pdf> accessed 22 May 2018.
- Stephen Sedley locates the methodological enlargement of judicial review to a series of cases between 1952 and 1982; Ashes and Sparks: Essays on Law and Jurisprudence (CUP 2011) 80. Tom Bingham notes the number of judicial review claims increased from from 160 in 1974 to 3,000 in 1993; The Business of Judging: Selected Essays and Speeches (OUP 2000) 231.
- Lord Sumption, ‘Judicial and Political Decision-Making: The Uncertain Boundary’ (F A Mann Lecture), November 2011 <http://www.pem.cam.ac.uk/wp-content/uploads/2012/07/1C-Sumption-article.pdf> accessed 24 April 2018 and ‘The Limits of Law’ (27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013) <https://www.supremecourt.uk/docs/speech-131120.pdf> accessed 24 April 2018.
- John Finnis, ‘Judicial Power: Past, Present and Future ’ (Gray’s Inn Hall, London, 20 October 2015) <http://judicialpowerproject.org.uk/wp-content/uploads/2015/10/John-Finnis-lecture-20102015.pdf> accessed 24 April 2018.
- Lord Sumption’s use of R v Lord Chancellor ex p Witham  QB 575 to illustrate his arguments is particularly salient given the recent Supreme Court decision in R (UNISON) v Lord Chancellor  UKSC 51.
- Recent contributions include: Mark Elliott, ‘Judicial Power and the United Kingdom’s Changing Constitution’ (2017) University of Cambridge Legal Studies Research Paper 49/2017, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3055862> accessed 24 April 2018. And Paul Craig ‘Judicial Power, the Judicial Power Project and the UK’ (2017) Oxford Legal Studies Research Paper 68/2017, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3080385> accessed 24 April 2018.
- Finnis (n 3).
-  UKSC 21.
- Richard Ekins and Christopher Forsyth, ‘Judging the Public Interest: The Rule of Law vs the Rule of Courts’ (2016) University of Cambridge Legal Studies Research Paper 49/2016, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845448> accessed 24 April 2018.
- Judicial Power Project, ‘About the Judicial Power Project’ <http://judicialpowerproject.org.uk/about/> accessed 24 April 2018.
- T T Arvind and Lindsay Stirton, ‘Legal Ideology, Legal Doctrine and the UK’s Top Judges’ (2016) Newcastle University ePrint, <https://eprint.ncl.ac.uk/218168> accessed 24 April 2018.
- Griffith’s The Politics of the Judiciary ran to five editions between 1977 and 1997. Though see ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159.
- John Griffith, The Politics of the Judiciary (5th edn Fontana 1997) 295.
- Judicial Pensions Act 1959, s 2. Amended by Judicial Pensions and Retirement Act 1993, s 26.
- Constitutional Reform Act 2005, Part 4.
- For the material on the financial crisis, I rely heavily on 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).
- Numerous examples, including: Simon Wren-Lewis ‘What Brexit and austerity tell us about economics, policy and the media.’ (2016) SPERI Paper No. 36 <http://speri.dept.shef.ac.uk/wp-content/uploads/2016/12/SPERI-Paper-36-What-Brexit-and-austerity-tell-us-about-economics-policy-and-the-media.pdf> accessed 24 April 2018. ‘What evidence we have suggests that in May 2010 a clear majority of economists thought Osborne’s turn to austerity was a mistake…’ at 3.
-  UKSC 68.
-  UKSC 16.
-  UKSC 58.
-  UKSC 39.
-  UKSC 51 – this is an austerity case to receive significant attention in the context of the debate on judicial power because of the constitutional issues raised.
-  EWCA Civ 504. R (DS & others) v Secretary of State for Work and Pensions is a leapfrog appeal from the High Court which is to be a heard with DA.
-  EWHC 864 (Admin).
- Elliott (n 5).
- See the Conservative Manifesto 2010 ‘Invitation to Join the Government of Britain’ (2010) <http://conservativehome.blogs.com/files/conservative-manifesto-2010.pdf> accessed 30 May 2018. And the Conservative–Liberal Democrat coalition agreement ‘The Coalition: Our Programme for Government’ (2010) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf> accessed 30 May 2018.
- The exception which perhaps proves the point is Sir Patrick Elias ‘Judicial scepticism from the left: some thoughts’ (Judicial Power Project, 29 May 2018) <http://judicialpowerproject.org.uk/sir-patrick-elias-judicial-scepticism-from-the-left-some-thoughts> accessed 3 June 2018. ‘One only has to think of the number of cases where the Supreme Court has upheld challenges against government austerity cuts, of which the recent UNISON case on tribunal fees … , to recognise that the politics of the judiciary are neither homogenous nor particularly conservative.’ It is tentatively suggested the cases where the Supreme Court has not upheld challenges to austerity are as significant.
- SC (n 23)