Judicial review update

In October 2011, the secretary of state for work and pensions, Iain Duncan Smith, launched a blistering attack on the charity, Child Poverty Action Group (CPAG). The cause of Duncan Smith's wrath was CPAG's judicial review challenge to part of the coalition government's swingeing cuts to the social security system; specifically, the changes to the housing benefit system which will cap housing benefit at a rate that is significantly lower than the market rent in many areas. The claim failed and Duncan Smith lambasted CPAG for their 'ridiculous'¦ irresponsible behaviour (and) an ill-judged PR stunt' which resulted in 'a massive waste of taxpayers' money and court time'.

If one reads the judgment, R (CPAG) v Secretary of State for Work and Pensions [2011] EWHC 2616 Admin, these criticisms are difficult to justify. In granting permission, the court had accepted that the claim was arguable, and, although the claim ultimately failed, Mr Justice Supperstone's detailed judgment resolved a number of important issues about the statutory purpose of the housing benefit scheme and the scope of the secretary of the state's regulation-making powers. However, it is unlikely that Duncan Smith's comments were written to withstand careful scrutiny by lawyers. Instead it appears they were intended to feed into a broader narrative that judicial review scrutiny is inapt where public sector cuts are concerned.

We have been here before, most notably with former home secretary David Blunkett's criticisms of judicial review challenges to his asylum and criminal justice policies. However, those who make these complaints can now draw on the support of the newest member of the Supreme Court, Lord Sumption, who, in his November 2011 FA Mann Lecture 'Judicial and political decision making: the uncertain boundary' (delivered within a month of Duncan Smith's comments and shortly before his appointment to the Supreme Court), complained of the Administrative Court's increasing tendency to adjudicate on what Lord Sumption considered to be 'inherently political' issues.

Lord Sumption's key proposition was that macro policy decisions should not be susceptible to challenge by way of judicial review. That is because no matter what the grounds of challenge Administrative Court judges will inevitably factor in the underlying merits of the policy in question and the merits of policies are inherently political questions which should be the sole preserve of elected politicians. Instead, according to Lord Sumption, judicial review should be restricted to challenges concerned with the failure to apply these macro policies fairly and consistently to particular individuals.

It may be thought to be a little ironic that someone who is concerned that judges are trespassing on inherently political issues should themselves deliver such an overtly political lecture on the eve of his appointment to the Supreme Court (the Daily Mail enthusiastically reported that Lord Sumption had 'accused British judges of'¦ stealing the democratic rights of ministers'). However, the more significant problem lies in Lord Sumption's underlying rationale that it is unconstitutional and democratically illegitimate for judges to entertain challenges to the lawfulness of macro policies.

Student fees challenge

Presumably, the recent student fees case is precisely the type of public interest judicial review claim to which Lord Sumption objects and it offers a useful prism through which complaints about judicial review overreach can be examined.

Unlike the CPAG case, the claimants in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 were not a campaign group, but two sixth form students concerned that annual fees of up to £9,000 per year would make it extremely difficult for them and other young people from lower income households to go to university.

The process of formulating the student fee increase policy was led not by an elected politician, but by the former chief executive of BP, Lord Browne. And, as is well known, the democratic legitimacy of the coalition government's decision to adopt his recommendations was problematic given Nick Clegg's pre-election commitment not to increase student fees.

The claimants argued, first, that the secretary of state's adoption of Lord Browne's recommendations contravened article 14 (non-discrimination) and article 2 of protocol 1 (the right to education) of the European Convention on Human Rights; and, second, that the decision to do so was in breach of the public sector equality duties (section 71 of the Race Relations Act 1976; section 49(1) of the Disability Discrimination Act 1995; and section 76A of the Sex Discrimination Act 1975).

The human rights challenge required the court to determine whether the policy was a proportionate means of achieving a legitimate objective notwithstanding the detrimental effects of the policy on students from lower socio-economic groups. The court concluded that it was and, in reaching that conclusion, expressly stated it had had 'particular regard to the fact that this is an area of macro-economic judgment, where decisions have to be taken about prioritising public resources'.

That is a familiar mantra and a reflection of the fact that the Administrative Court is in reality prepared only to interfere with macro policy decisions on human rights grounds in the most extreme cases, despite the contrary impression given by some sections of the media. However, the idea that there is something unconstitutional and undemocratic in the court even embarking on this proportionality assessment is difficult to reconcile with parliament's decision to enact the Human Rights Act, making it unlawful for ministers to act incompatibly with the convention (section 6(1)) and compelling courts to take Strasbourg decisions into account when determining human rights challenges.

As to the suggestion that the reach of the public sector equality duties should not extend to macro policy decisions, it is instructive to recall that the race equality duty was introduced in the wake of Sir William Macpherson's inquiry into the death of Stephen Lawrence and his conclusion that 'it is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities'. Subsequently, the disability and gender equality duties were introduced in light of similar concerns about the failure to properly assess the impact of policies on disabled people and on women. All three duties were introduced with cross-party support and they are duties which are directed primarily at policy formulation.

Consequently, it is very difficult to see why the Administrative Court should not scrutinise very carefully whether there has been a proper and conscientious focus on the equality duties when formulating the student fees policy '“ given that access to university is so important to the promotion of equality of opportunity. With that in mind, if there is anything controversial about the Hurley & Moore decision it is not that the student fees policy was the subject of a judicial review, but that the court concluded that the public sector equality duties had been breached and yet refused to grant any effective relief. And one cannot help but wonder if one of the reasons for failing to do so was the opposition to 'public interest' judicial reviews stoked up by politicians and given support by Lord Sumption.

Backing down

Certainly there is an impression that the courts are now becoming less willing to uphold judicial review challenges to public sector cuts decisions. For example, in R (Bailey) v London Borough of Brent [2011] EWHC 2572 Admin, the Court of Appeal rejected a challenge to library closures even though it seems pretty clear that the local authority in that case had simply overlooked the disproportionately high reliance on public libraries by the large Asian community in Brent. While in R (Barrett) v London Borough of Lambeth [2012] EWHC 4557 Admin, the court found that a decision to terminate funding for services for learning disabled people had been taken in breach of the public sector equality duties, but refused nonetheless to quash the termination decision.

This anti-judicial review climate also impacts on the funding of claims. Bringing privately funded challenges to public sector cuts and other macro policy decisions is already very difficult with a huge imbalance between citizen and state, and it will become even more difficult as a result of the Ministry of Justice's refusal to adopt the full package of reforms recommended by Lord Justice Jackson in relation to judicial review litigation (an approach which has thus far provoked no adverse comment from Lord Justice Jackson).

Consequently, public funding is often the only viable mechanism for funding such claims. However, securing public funding for public sector cuts cases has become much more difficult in the last 12 months and it seems pretty clear that one of the reasons for this is that ministers in other departments have been lobbying the Legal Services Commission to discourage them from providing funding for public sector cuts cases '“ pressure that will only increase once the Legal Services Commission is abolished and responsibility for funding decisions passes to the Ministry of Justice.