The question of how to spend the nation’s money is usually one for the government, with ministers and civil servants making the budgetary decisions. At the end of the financial year, it is the Chancellor of the Exchequer who explains the state of the UK’s finances, and how the government is going to aspire to reduce the deficit, with parliament involved where legislation is necessary. Given this, financial decisions are a matter that the courts usually stay well away from, deferring to the expertise of the government.
This does not mean that the courts are always docile, shying away from decisions because they affect the nation’s bottom line. The nature of judicial review means that many judicial decisions must necessarily have a knock-on effect on government spending, whether that be requiring prison conditions to be improved, or returning a deported asylum seeker. On these matters, where the primary issue concerns rights, or something else more naturally within the courts’ competence, the courts usually intervene. Very few people think that decisions such as the ordering of an inquest, potentially requiring the government to spend hundreds of thousands, if not millions of pounds, are illegitimate. The matter of finance is clearly secondary.
Where the issue becomes more complex is where government spending and rights more clearly overlap, creating grey areas as to whose territory the issue falls on. This no-mans’ land was faced by the Supreme Court in the recent benefits cap case, DA & DS v Secretary of State for Work & Pensions. The benefits cap was a policy implemented by the coalition government as part of austerity, with the intention being to ensure that those on benefits were not left better off than those in working households. Regardless of criticisms over its implementation, the logic behind the cap was reasonably sound. Allowing those on benefits to receive more money than those who are working usually seems unfair .
That this could lead to those on benefits struggling was recognised within the policy. To compensate for this, welfare recipients were encouraged to pursue part-time work, and could potentially work up to 16 hours a week without it affecting their benefits. In theory at least, this meant someone on benefits would be significantly better off, even if they only took on a few hours work a week. What this policy ignored is that not all welfare recipients are able to take on part-time work. For instance, single parents, who were the litigants in this case against the Secretary of State, claiming that the policy discriminated against them in violation of the European Convention on Human Rights.
Raising children is an arduous task, even for two parent families. Trying to raise a child alone means that most single parents will need greater support from the government, particularly if they do not have friends and family who are able to step into the breach. The litigants therefore alleged that by failing to recognise the difficulty that a single parent would have in raising a young child and finding part-time work, the policy was discriminatory. It reduced them to receiving payments that were insufficient to raise a child on, but without the avenues of topping up their income available to other welfare recipients.
Morally harmful and financially dubious
The Supreme Court decided that whilst the system seemed harsh, even possibly leaving recipients ‘below the poverty line’, it was not unlawful. The government had considered the impact on lone parents, but had decided that children would be better off in a family where the parent worked, and that the risk of harm to some single parent families was a cost that had to be paid. Considering this, the justices emphasised that they could not review the decision based on whether it was the choice they would have made, but instead if the decision of the government was ‘manifestly without reasonable foundation’.
The consequence of this judgment is to leave in place a policy that is morally harmful and financially dubious. The court was referred to numerous studies showing that children grow and develop best when raised by parents, not when erratically farmed out to nurseries or other family members. As Lady Hale pointed out in her dissent, the fact that the government has awareness of an issue ‘is not the same as taking the best interests of those children into account’. Instead, the government had prioritised the ‘speculative’ risk of being raised in a household on benefits over the ‘very real and well-documented risks’ of living in poverty.
The majority of the court was not ignorant on this issue, nor did they really dispute it. The difficulty lay in the fact that the issue was seen by the majority as one of finance, even though the ‘fiscal savings are very small’. This meant they adopted an unduly deferential standard, where the government simply had to show that it had considered the issue in question, and had a semi-coherent justification for its choice. Even though the majority of the court clearly thought it was an ineffective and harmful policy, they chose to bind their hands. Framing the issue through the prism of rights would have allowed for more scrutiny to be applied, reducing the policy’s prospects of survival.
How far the courts should defer to government decisions is a topical one, recently discussed by Lord Sumption in his Reith Lectures. The courts ultimately have the discretion to decide on how intensively they will review the choices, with decisions such as Evans, which concerned the setting of tribunal fees, showing how they can take a more stringent line on questions of finance. A more assertive approach on this decision would have emphasised that money cannot trump rights. It would have meant that the government could plead financial stringency in future cases, but that if they chose to, the game would need to be worth the candle.
This decision makes the courts look weak. They have legitimised a policy that is intentionally harmful, whilst recognising that the harm is done in pursuit of no greater good. This obsequious approach diminishes the court, making the justices look toothless, unable to fulfil their role as the last defence of rights. Moreover, it lends succour to an ignorant government, one that prioritises tomorrow’s headlines over long-term progress.
