Judicial Activism

Francis FitzGibbon

The ‘bedroom tax’ is a policy about the allocation of two kinds of limited public resources: council accommodation and housing benefits. Council tenants no longer receive full housing benefit if they occupy rooms that the regulations say they do not need. They must make up the rent shortfall if they can, or move out so their homes become available to larger families who need the space. Policies that shift the allocation of such resources are political, if not the very essence of politics in a modern democratic state. But so are the legal cases that they generate. The claimants in the recent judicial review of the tax were disabled and vulnerable children. They challenged the policy on the basis that it discriminated unlawfully against them by failing to recognise their special need for space that the regulations held to be surplus to their requirements.

 Lord Justice Laws’s judgment was mainly about the technical interpretation of the regulations, but he made these more general comments:

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 law has been enriched accordingly. But it is not generally for the courts to resolve the controversies which this insistence involves. That is for elected government. 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.

No one would say that the judges should usurp the proper functions of elected politicians, but the borders between their ‘territories’ are not clearly marked. The troubling unspoken premise is that a court decision in a case like this can, somehow, avoid being ‘political’. Laws found in favour of the government, by a traditional legal construal of the statutes and regulations. But whichever way the decision went, there would still be winners and losers: in this sense, the court’s decision was bound to be as ‘political’ as the minister’s. Those who complain about judicial activism always have in mind decisions which go against powerful interests. When a court upholds a decision of the executive, it is not being ‘inactive’. In Liversidge v Anderson (1941), the House of Lords upheld emergency wartime regulations, permitting internment without trial, but what everyone remembers is the dissenting speech by Lord Atkin, who warned the judges not to be ‘more executive-minded than the executive’.

What, then, is a ‘proper arbiter of political controversy’? According to Jonathan Sumption QC (speaking in 2011, just before he joined the Supreme Court), ‘Parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ This echoes the bizarrely complacent view of Lord Denning, who in 1977 rejected the American journalist Mark Hosenball’s challenge to his deportation. The home secretary refused to give reasons beyond the blanket of national security. Hosenball had written about GCHQ, the very existence of which was a state secret. Denning said:

There is a conflict here between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the home secretary. He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them, successive ministers have discharged their duties to the complete satisfaction of the people at large... They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the state. In this case we are assured that the home secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with which he considered the whole matter. He is answerable to Parliament as to the way in which he did it and not to the courts here.

Things have moved on: national security is a high card but not always a trump these days. The sheer volume and complexity of legislation and administrative decisions makes thorough scrutiny by Parliament impossible. Most of it comes from the questionably democratic House of Lords; judicial review fills a democratic deficit. Judges are now less deferential to ministers than Denning was, but no less respectful of the separation of their powers. Maybe we should not expect judges to be too questioning of the established order of things – after all, the law is the primary means of establishing order on things. But then a judge says, as a solemn finding of fact:

The present system of party funding, whether desirable or not, is lawful and practical, whereas other possible systems, such as funding out of taxation, or mass membership of political parties, are either not provided for by law, or not in practice available to the parties, however much they might wish that they were. This court cannot declare to be corrupt, as a matter of fact, the system of party funding authorised by Parliament and adopted by the Conservative and other parties. That may or may not be an opinion which people may honestly hold. It is not true as a matter of fact that the system is corrupt.

‘Political’ or not? This was the July 2013 decision against the Sunday Times in a libel action brought by Peter Cruddas, whom the paper accused of peddling influence when he was treasurer of the Conservative Party. Mr Justice Tugendhat may have meant to say that as a matter of law, the system was not corrupt, and the legal status of the funding is a fact; his actual words are a sweeping if unacknowledged incursion into political territory, on the side of the status quo. They draw their political colour, in part, from the background of libel law, which puts the burden of proof on the person making an allegedly libellous statement, to the disadvantage of free expression.

In his withering response to Sumption in the LRB, Stephen Sedley advanced his view that judges seldom if ever cross the frontier into politics; they intervene when executive decisions are unlawful, while maintaining their constitutional independence. Judges can’t and don’t make policy; but if the policy is unlawful, they can unmake it or at least demand a rethink. A decision or policy will be unlawful if the decision maker has failed to follow existing rules, or to stick to all and only the relevant considerations, or has acted unreasonably in some way. That takes a challenge so far: human rights law enables the courts to test the lawfulness of administrative decisions against something more than the black-letter rules. If the policy unjustifiably breaches a protected right, that too renders it unlawful – simply because human rights are embedded in the law.

So it is not true that courts are not the proper arbiters of political controversy: that is exactly what they are. It is their duty to apply the law so that policies made by politicians conform to the law. They are proper arbiters, because the law appoints them as such. The subject matter of much administrative – and other – law makes it impossible for them not to take decisions with political ramifications. All they need do is ignore their own political views, if they have any, and act impartially. Football referees don’t decide team tactics or favour the side they privately support, but they can disallow goals for offside. The proper arbiter of a ‘political controversy’ doesn’t have to be a politician, and a judge deciding ‘political’ cases doesn’t become a politician; but the application of law doesn’t drain the politics from the controversy.

Lord Justice Laws could, perhaps, have decided the bedroom tax case in favour of the claimants, without ‘an ambitious expansion of judicial territory’: he could have found that the policy failed to meet the minimum standards set by Article 8 of the European Convention, to protect their family life. The main reason for his decision was that the rules themselves were lawful because the minister had a discretion to exempt people like the claimants.

It may be that the disavowal of a ‘political’ role was no more than a reflex to what was obviously a highly charged political decision, a mere assertion of the standard line on judicial separation. But one can protest too much.