‘Do we really want to import an Americanised judiciary – alongside chlorinated chicken’

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‘Do we really want to import an Americanised judiciary – alongside chlorinated chicken’

Justice in a time of austerity: a Justice Gap series

Universal Credit has had an unhappy genesis. The brainchild of Ian Duncan Smith, then Work and Pensions Secretary, it is based on a reasonably sound idea. In theory, it should simplify the benefits system, coalescing the disparate social security payments, from Housing Benefit to Child Tax Credit, into one system.

Unfortunately, the simplicity of the idea belies the difficulties there have been in implementing it, with the system having been plagued with problems from inception. Some have been by accident, such as when the designers failed to realise that many applicants would have difficulty with a digital application system, but too many have been through design, most obviously the five-week waiting period, an unacceptable delay that saw many claimants faced with homelessness, debt and loan sharks.

It was an example of the latter type of problem that was recently challenged in the Court of Appeal by the government, after the claimants had originally been successful in the lower Divisional Court in arguing that the method of calculating their salaries (and so eligibility for benefits) was unlawful. Many salaries in the UK are paid on a four-weekly basis, rather than a monthly basis, meaning that on occasion, a worker might be paid twice in one month, and nothing the next. On the face of it, this should cause little harm.

Yet the UC system insisted on calculating an applicant’s benefits on the basis of what they received each month. This meant that for a recipient who happened by chance to be paid twice in a month, they would exceed the benefits cap, and so receive nothing that month. According to the government, there was no way of the system discriminating between those who happened to be paid monthly, and those who were paid four-weekly. Even if their yearly salaries were the same, those in the latter category were simply unlucky, and there was nothing that could be done.

The absurdity of this argument was made clear in the Court of Appeal’s judgment, with Lady Justice Rose endorsing the Divisional Court’s conclusion that the system was ‘odd in the extreme’, and ultimately unlawful because of its irrationality. While the principle underlying the payment structure was sound, insofar as it was intended to imitate a monthly salary, ‘it would not be inconsistent with the overall universal credit scheme to devise an exception to solve this problem’. To claim, as the government did, that those paid four-weekly are paid ‘irregularly’ fails to recognise the idiosyncrasy of the calendar, where holidays and weekends mean that even those supposedly paid on a fixed date each month often find their salary being paid a few days before or after the date.

That the government saw fit to challenge the decision of the Divisional Court is surprising. Rather than spending more money on lawyers who would have almost certainly advised the government they were likely to lose their appeal, the money would have been better put towards implementing the necessary changes in the UC system. It is, however, reassuring to see that the Department of Work and Pensions has issued the standard boilerplate response to a loss in the courts, saying that they are ‘carefully considering’ the decision ‘as part of our ongoing work’.

Meanwhile in America, their Supreme Court (SCOTUS) has handed down two decisions in the past week that have been met with a less measured response. The first case, Bostock, was a challenge to the legality of dismissing an employee because they were gay or transgender, and the second was a challenge to the Trump administration’s attempts to end DACA, an Obama-era policy that protected children born in the United States to illegal immigrants from deportation. In both these decisions, SCOTUS gave a ‘liberal’ ruling, finding that the civil rights legislation in question prohibited discrimination on the basis of sexuality, and that the Trump Administration had failed to properly circumnavigate the procedural safeguards in ending DACA.

The American right has been apoplectic in response to these twin decisions. Donald Trump condemned them as ‘horrible & politically charged’, claiming that they were ‘shotgun blasts into the face of people that are proud to call themselves Republicans’. Simultaneously, other right-wing politicians and commentators were quick to criticise the Court, like Carrie Severino, president of the ‘Judicial Crisis Network’, claiming that the Bostock decision was an ‘ominous sign for anyone concerned about the future of representative democracy’.

Admittedly, SCOTUS’ decisions were on the high-profile issues, while the UK Court of Appeal’s decision concerned a benefits system that has been problematic from the start. However, this alone does not explain the outrage on the right in America. Indeed, SCOTUS’ two decisions were almost as obvious as that of the Court of Appeal’s. On the face of it, it would have been more astonishing for the Court to have ruled that people could be discriminated against in the workplace because of the gender they are attracted to, or that the Trump Administration could end the DACA system on a whim, upending the lives of millions who have relied on the system to build lives in the USA.

What does explain the outrage is the identities of the judges who have made the decisions. Most of the ire has not been directed at the reasoning of the Court, but instead at two judges in particular – Chief Justice Roberts and Justice Gorsuch. Both of these judges are Republican appointees, with Roberts made Chief under Bush in 2005, and Gorsuch elevated (amidst much controversy) by Trump in 2017. Rather than expecting them to act like judges, deciding each case on its merits, the expectation was that they would form part of a unanimous conservative bloc, consistently ruling in favour of conservative interests, whether on immigration, gay rights or gun ownership.

This expectation comes from the fact that the judicial appointments system in America is heavily politicised. The power of the Supreme Court over the US Constitution means that both parties, Republican and Democracy, are hugely invested in ensuring that they have a majority of appointed justices on the bench, and that those justices rule consistently with the ideology of their party once they are there. The Republicans currently hold the balance of power, but if the Democrats held a majority and a Democrat-appointed justice ruled against a Democratic interest, they would also be subject to trenchant criticism for ‘betraying’ their party.

Such a politicised judiciary is deeply damaging to a democracy. Criticism of the courts is a necessary feature of liberal democracies, but the criticism should be focused on the nature of the judgment, not on the politics of the judge. The measured response of the DWP to the decision of the Court of Appeal is how governments should respond to a judgment, and people should not be anticipating outcomes on the basis of a judge’s politics. Instead, there should only be the expectation that a judge will rule fairly, impartially and coherently on the merits of the case, not the identities of the parties before them.

In the aftermath of the two Miller decisions, and then of the Court of Appeal’s decision on the third runway at Heathrow, there was discussion in some quarters of government that judges should be politically accountable, possibly through being appointed through parliament. As was written at the time, this would be a hugely damaging move, politicising the judiciary and so bringing their legitimacy and independent into question. For the moment, the government has been distracted by the twin behemoths of Covid-19 and Brexit, but the proposals to eliminate jury trials for some offences show that reform of the courts is not far from ministers’ minds.

Moving towards judge only (or judge plus magistrate trials) would be a revolutionary shift, abandoning a system of justice that has formed the backbone of English criminal law for centuries. Regardless of the jury system’s merits, its reform should be carefully considered, rather than done off the cuff in the middle of the the greatest public health crisis for a hundred years. For those sceptical of whether the government really would be willing to truly politicise the judiciary, if they are willing to bulldoze the right to a jury trial, it is doubtful that introducing a more political judicial appointments system would be beyond the pale.

If any Conservative ministers are tempted by the thought of politically approved judges, they would do well to look across the Atlantic, and think again about whether we really want to import an Americanised judiciary, alongside their chlorinated chicken.