By Rebekah Read
Lord Sumption recently gave a lecture entitled ‘The Limits of Law’. Here he argues that the UK courts, particularly as a result of the influence of the European Court of Human Rights, are making judgments on issues which ought to be resolved politically. He argues that this is illegitimate in a democratic society. He has argued a similar point in his 2011 lecture ‘Judicial and Political Decision Making: the Uncertain Boundary’. This prompts the question of how far the judiciary should defer to Parliament in striking a balance between the rights of the individual and the needs of society. This question is tested when decisions of the State are challenged by judicial review (JR) and the judiciary is asked to consider issues of policy.
In recent years austerity measures have been implemented by the government affecting matters of welfare and housing benefits, and related socio-economic issues. A number of JRs have challenged these on human rights grounds. An example of such a JR is the “bedroom tax” case. This challenged the impact that new housing benefit rules, which penalise those with a spare bedroom, have on persons with disabilities who require a spare bedroom. The claimants alleged that the failure to introduce alternative rules to cater for their needs was discriminatory, and in introducing them the government had failed to have ‘due regard’ to their effect on those with disabilities and other vulnerable groups, as required by s.149 Equalities Act 2010. The claimants lost at first instance but are intending to appeal.
After deciding that the housing benefit rules were discriminatory, Laws LJ had to determine whether they had an objective and reasonable justification; they must pursue a legitimate aim and the measures taken must be proportionate to this aim. As held in Stec, in such areas of high policy, measures are disproportionate when they are “manifestly without reasonable foundation.” Laws LJ comments on his view of the role of the judiciary in the “bedroom tax” case:
The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy.
Laws LJ is particularly concerned to avoid the courts “micro-managing” policy-making. He had previously expressed his views in ex parte Begbie. He criticised judicial interference in “macro-policy” decisions, saying that quashing such decisions on grounds other than irrationality would require the judges to “don the garb of policy-maker, which they cannot wear”.
Lord Sumption echoes the view that JRs of policy decisions, particularly in relation to matters of socio-economic policy (other than on the basis of illegality), should be treated with caution. He argues that they are undemocratic in their attempts to usurp decisions for which elected representatives are ultimately accountable. His view is that the judiciary should defer to the executive and not intrude on political matters.
These criticisms fail to consider the democracy-enforcing role of JR in standing up for the rights of groups who fail to be properly represented by Parliament. As Lord Hope in AXA Insurance says:
While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole.
In addition, the ability of an independent judiciary to hold decision makers to account is an essential element in upholding the rule of law in a democracy. Lord Bingham in Belmarsh commented:
The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.
In light of these comments, the view of Laws LJ that socio-economic policy is too “high policy” to be considered by the judiciary seems questionable. Indeed, there are a number of asylum cases where the courts have quashed socio-economic “high policy” decisions where the policy has been such as to threaten them with destitution, such as Limbuela and JCWI. Both cases attracted ire from politicians, highlighting the importance of the role of the courts in ensuring political decisions, as far as possible, respect minority rights.
Lord Sumption and Laws LJ argue that the courts stray outside the legitimate region of reviewing the application of policy to individuals when embarking on the review of policy itself. However, in response Sir Stephen Sedley points out that sometimes considering the justification for a rule is necessary to decide whether the impact on an individual is lawful. In the “bedroom tax” case, it was necessary to assess the overall justification for the housing benefit rules in order to ensure that the policy aimed at reducing ‘under-occupancy’ conformed to the law by not impacting disproportionally on persons with disabilities. Lord Sumption’s alternative approach is dangerous in that it threatens to bar areas of policy from judicial scrutiny from the outset, without the actual review necessary to determine whether those areas of policy are lawful or not.
Sir Stephen Sedley challenges Lord Sumption’s view of where the boundary separating law and politics lies by referring to Lord Bingham’s account, from the case of Belmarsh, of the relationship between the system of justice and the system of government:
The more purely political (in a broad or narrow sense) a question in, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision…Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.
This demonstrates the lack of an obvious distinction between the legal and political content of an issue. However, Lord Bingham does recognise limits to judicial competency in ex parte B:
Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which a court can make.
Lord Bingham’s view, then, is that cases concerning discretionary decision-making over the allocation of resources require more judicial restraint. However, this does not translate as a blanket ban on such JRs. Lord Bingham is concerned rather with how far the courts possess the analytical and procedural tools to second-guess budgetary allocations.
The scope of JR has increased over the last 50 years, making the question of how far the judiciary should defer to the executive increasingly relevant. Areas previously thought non-justiciable, such as national security decisions, are now amenable to JR. While the approach has not always been consistent, cases like Belmarsh have shown a willingness of the courts to review such decisions rather than defer to the discretion of the executive. There is a delicate balance to be struck when considering the justiciability of policy decisions, but JR exists to provide an essential democratic safeguard when the rights of minority groups are overlooked by the executive.
 R (on the application of MA & Ors) v The Secretary of State for Work and Pensions  EWHC (2213)
 Stec v the United Kingdom 43 EHRR 1017
 R v. Secretary of State for Education and Employment ex parte Begbie  1 WLR 1115
 AXA General Insurance Ltd v The Scottish Ministers  UKSC 46
 R (on the application of Limbuela) v Secretary of State for the Home Department; R (on the application of Tesema) v Secretary of State for the Home Department; R (on the application of Adam) v Secretary of State for the Home Department  UKHL 66
 R v Secretary of State ex p. JCWI  1 WLR 275
 Lord Sedley, Judicial Politics, 2012
 R v Cambridge Health Authority, ex p B  1 WLR 898
 This is discussed in detail in Jeff A. King, The Justiciability of Resource Allocation, 2007