I am applying to study for a PhD in law. Below is what I hoped to be the final version of my research proposal. But it turned out to be the second draft. The final version of the research proposal is here. Or the first draft is here.
A socio-political analysis of judicial decision-making in the legal challenges to austerity in the UK.
Research questions and focus
The focus of the research is the austerity litigation: the public law claims which challenged the law enacted and policies formulated in the UK since 2010 to achieve public spending cuts. The key question is what the austerity litigation reveals about the politics of the judiciary, including whether the legal and constitutional changes since 2000 have significantly altered judicial decision-making.
The working thesis is: while the power of the judiciary has grown, that power has generally been exercised only where austerity litigation has engaged juridical values. Claims which have not engaged those values have generally failed. Therefore, the legal system as constituted does not protect people from the impact of austerity, save in the most egregious cases or where protection is incidental to protecting juridical values.
Background to the proposal
The global financial crisis hit the UK in 2007-08.1 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 relative to 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.’2
Austerity was not applied equally across functional spending areas. Two major areas of expenditure – the NHS 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%.
Social security spending on the working aged has been targeted. Some of the benefit 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.3 Disability living allowance was replaced by the personal independence payment (PIP).4 Claimant commitments and sanctions were introduced for the benefits to be replaced and UC.5 Housing benefit for tenants in the private rented sector was capped and restricted for tenants in the social rented sector (the ‘bedroom tax’).6 A benefit cap linked to average earnings of working households was introduced. Council tax benefit was abolished, as were community care grants and crisis loans.7
Local government has also seen significant cuts. Between 2010/11 and 2015/16 local authorities experienced a reduction in spending power of 23.4% in real terms.8 The picture in relation to local government spending is complex in that much spending – for example on schools – is non-controllable and there has been a shift from direct grant to retention of revenue from local taxation.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made major changes to legal aid. Civil legal aid became unavailable, save in exceptional circumstances, for: private family law, welfare benefits; debt, education (except for cases of Special Educational Needs); employment; housing; and immigration (except asylum and detention cases).
Austerity has continued under the Conservative governments formed following the 2015 and 2017 general elections. Further changes to reduce spending were, or are to be, implemented. These include, in relation to benefits, a reduction in the benefit cap, a four-year benefit freeze, and a two-child limit for child tax credit and UC.9
Although the changes were, and continue to be, presented as an economic necessity to ‘balance the books’, they are plainly policy choices. Some spending was protected and some targeted 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.10
There have been a significant number of claims brought to test the legality of the law and policy changes which facilitated austerity. There are Supreme Court decisions relating to: benefit sanctions,11 the benefits cap,12 the bedroom tax,13 Tribunal fees,14 and access to legal aid.15 There are, of course, many more first instance and Court of Appeal decisions.
The judiciary and politics
My starting point is John Griffith’s The Politics of the Judiciary, which ran to five editions between 1977 and 1997. 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. 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, 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 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 1998 confirmed the adaptation 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 as these judges retire.
To give an indication of the changing pattern of appointment, of the current 69 High Court judges, over 50 were appointed after selection exercises undertaken by the Judicial Appointments Commission. 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.
Research methods to be used
There are various research tasks and the methods relate to the tasks.
- A. Literature review.
The drafting of this research proposal has been hampered by poor access to legal and academic journals. I am not currently enrolled at an educational establishment and therefore have limited access to the literature, most notably journals. There is, of course, a substantial body of material after The Politics of the Judiciary. A literature review is required to understand and engage fully with contemporary research and socio-political analysis of judicial decision making.
- B. Define austerity litigation.
The task is to define austerity litigation. For some cases – for example the social security cases – there is a clear link between the legislation and the litigation. In other cases – notably challenges to local authority spending decisions – the link is more tenuous. A definition is required in order to identify cases.
- C. Identify austerity litigation.
The proposed data set is decisions published by the British and Irish Legal Information Institute (BAILII) since 1 January 2011 in the categories of: United Kingdom Supreme Court; England and Wales Court of Appeal (Civil Division); and England and Wales High Court (Administrative Court). Bailii is an almost complete repository of cases decided in the High Court and above. The task is to work through and apply the definition of austerity legislation to identify and tabulate cases searchable by issues, outcome, court, etc. The outcome should be a complete record of austerity litigation.
- D. Select and analyse cases.
The task is to select the cases which are relevant to the (by then developed) thesis as tending to support it or contradict it. What do the cases reveal about the political, social and economic views of the judiciary and how do these fit with existing models or theories of adjudication? Since Griffith undertook his research, there is greater scope to go beyond the judgements. Obtaining the parties’ pleadings is much easier and cheaper with increased rights of access (for example there is a right of inspection of Supreme Court documents22) and the development of information technology. It is tentatively suggested that given the critique that judgements tend to be reasoned from conclusions,23 the pleadings will assist in the analysis of the adjudicative process.
I expect the literature review to take six to nine months. And the identification of the cases a further three months. Which leaves a minimum of two years for analysis and writing up the research.
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)
- 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).
- Bradshaw (n 1) 275.
- Welfare Reform Act 2012, ss 1 to 12.
- Welfare Reform Act 2012, ss 77 to 95.
- Welfare Reform Act 2012, ss 13 to 28 (UC) and ss 44, 49, 54, 57, 59 (other benefits).
- Welfare Reform Act 2012, s 69.
- Welfare Reform Act 2012, ss 70.
- National Audit Office, ‘Local Government Overview 2015-16’ (NAO October 2016).
- Welfare Reform and Work Act 2016.
- 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).
- R (Reilly and another) v Secretary of State for Work and Pensions  UKSC 68.
- R (SG and others) v Secretary of State for Work and Pensions  UKSC 16.
- R (Carmichael and Rourke) v Secretary of State for Work and Pensions  UKSC 58.
- R (on the application of UNISON) v Lord Chancellor (Respondent)  UKSC 51
- R (The Public Law Project) v Lord Chancellor  UKSC 39.
- John Griffith, The Politics of the Judiciary (5th edn Fontana 1997) 295.
- Human Rights Act 1998, ss 3, 4, 6 and 7.
- 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.
- Stephen Sedley, Lions Under the Throne (CUP 2015) 197.
- Constitutional Reform Act 2005, ss 63 and 64.
- Judicial Pensions Act 1959, s 2. Amended by Judicial Pensions and Retirement Act 1993, s 26.
- The Supreme Court Rules 2009, r 39(3).
- See, for example, Stephen Sedley, Ashes and Sparks: Essays on Law and Justice (CUP 2011) 156. He has advanced the same point on several occasions, though formulated in different ways.