In a democracy, parliament, not the judiciary, must
have the last word on policy
by Jon Holbrook
This week has been an important one for welfare
benefit reform in the UK. Which is strange, given that the House of Commons is
in recess and the Welfare Reform Act received royal assent in March 2012.
The reason for this is that, having been unable to
prevent the Welfare Reform Act from clearing its democratic hurdles, a number
of campaigners and their lawyers have been busy seeking to hinder the act’s
implementation by undemocratic means: an appeal to the judiciary. In addition
to Tuesday’s failed judicial reviewsagainst the
bedroom tax, other legal challenges against the benefit cap, whereby no
household may receive more than £500 of benefits each week, are currently
working their way through the corridors of the Royal Courts of Justice.
The problem of judicial involvement is not limited to
government policy on welfare benefits. On Monday, the High Court gave the trade
union Unison permission to challenge government policy that now requires
applicants to pay fees before issuing claims in the Employment Tribunal. In
fact, since the failed legal challenge to the coalition budget in June 2010,
the government has faced a succession of judicial challenges to its policies.
Local authorities have also faced regular judicial reviews on policy issues,
particularly on budget cuts.
Most of these judicial challenges fail, but some
succeed, such as the Burnip casewhere a different aspect of the
government’s housing benefit policy was declared unlawful by the Court of
Appeal in 2012. However, focusing on whether the claimants win or lose misses
the point. And that point is: individuals and organisations are challenging
policies in the courts that have been made by our elected representatives in
central and local government.
It doesn’t matter that judges often spell out the
limited ambit of their jurisdiction to intervene. Lord Justice Laws stressed
this point in the recent bedroom-tax cases, when noting that secretary of state
for work and pensions, Iain Duncan Smith, enjoyed a broad margin of discretion
on the formulation of policy. Note, however, that this is not an unfettered margin
of discretion with boundaries set only by parliament; no, it’s a margin of
discretion with boundaries set by the courts.
More chilling are dicta from the House of Lords in
another welfare benefit case (Carson, 2005), which assert
how the courts will set limits on the extent of parliament’s discretion: ‘The
essential question for the court is whether the alleged discrimination… can
withstand scrutiny.’ Unless the answer is plain, ‘the court’s scrutiny may best
be directed at considering whether the differentiation has a legitimate aim and
whether the means chosen to achieve the aim is appropriate and not
disproportionate in its adverse impact’.
These words make clear that it is not for parliament
to decide if a policy has a legitimate aim. Rather, it is the courts which have
the final say on both the aim and the means of achieving it. If judges find the
aim illegitimate, or the means disproportionate, then they can declare a policy
unlawful.
Lord Justice Laws noted that there would be some cases
‘where the courts will have a clarion voice’ to act. ‘Act’, that is,
against a policy determined by an elected government. The expression ‘clarion
voice’ is interesting at a time when some commentators are apt to show their
contempt for democracy by referring to ‘dog-whistle politics’. It betrays a
vision of a judicially managed democracy where wise and sensible judges have
the final word on contentious policies, and of a democracy where the electorate
and their elected representatives cannot be trusted.
The relationship between parliament and the judiciary
has been transformed over the past few years. A concern about the relationship
between the legislature and judiciary can be traced back to Montesquieu, whose The Spirit of the Laws (1748) gave rise to the notion of a
separation of powers. He argued that it was important for the legislature,
executive and judiciary to be distinct. But in Montesquieu’s time, the laws
that judges administered did not give judges the powers they now exercise. He
famously referred to the judiciary’s hallmark as strictly and impartially
applying rules: ‘Judges are no more than the mouth that pronounces the words of
the law, mere passive beings, incapable of moderating either [law’s] force or
rigour.’
Montesquieu’s ideas were developed by Albert Dicey.
His Introduction to the Study
of The Law of the Constitution (1885)
was the touchstone of British constitutionalism for over a hundred years. Dicey
observed that ‘there is no power which, under the English constitution, can
come into rivalry with the legislative sovereignty of parliament’. Dicey was
clear that a balanced constitution required the legislature to be sovereign
over the judiciary. And it is this fundamental principle of democracy, which
makes the electorate sovereign through parliament, which is now being
challenged.
In the bedroom-tax cases, Lord Justice Laws referred
to the changing relationship between parliament and the judiciary. He noted how
‘much of our modern law, judge-made and statutory, makes increasing demands on
public decision-makers in the name of liberal values: the protection of
minorities, equality of treatment, non-discrimination, and the quietus of old prejudices’. The implications
of this statement, particularly the words ‘discrimination’ and ‘prejudice’,
need to be considered carefully. ‘Discrimination’ in its broadest sense merely
means favouring some over others; discrimination is a natural consequence of
policymaking. All policies discriminate against some and in favour of others.
And on what basis should the judiciary decide what is an ‘old prejudice’? One
person’s old prejudice is likely to be another’s common sense.
It is starting to irritate the government that
contentious policy decisions, passed by parliament, are being regularly
challenged in the courts. As prime minister David Cameron recently pointed out,
in 1998 there were 4,500 applications for judicial review, a number that almost
tripled in a decade. The former lord chancellor Ken Clarke warned that the
increasing use of judicial review was leading judges to make increasingly
politicised interventions. Downing Street officials said it was impossible for
ministers or No. 10 to hold a discussion on any issue without some warning that
it was likely to be ‘JRed’ (that is, submitted for judicial review).
The judges are not to be blamed for this current state
of affairs. As befits their constitutional position, they apply the laws
parliament gives them, or, if necessary, that parliament takes away from them.
Most of the challenges to legislation are brought by claimants relying on the
Human Rights Act 1998, which requires judges to apply the European Convention
on Human Rights, and the Equality Act 2010. These are both statutes with
non-discrimination provisions that can be used to question and quash
policies.
In the name of democracy, parliament needs to reassert
its sovereignty by repealing all those powers – such as in the Human Rights Act
and the Equality Act – that give judges the power to trump legislation. Reforms
of this kind would give the electorate a clarion voice.
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