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This case is a good example of why judicial review, and access to it, are important aspects of our democracy. https://twitter.com/jreynoldsmp/status/1276108564017405953
The issue concerned a universal credit regulation (a statutory instrument made by Ministers with little parliamentary scrutiny).
The particular provision said that a person’s income from her job in a month was to be treated as being the payments she received from her employer in that month.
Looks sensible, doesn’t it?
But sometimes - if you are paid on the last day of a month - that day falls at the weekend or on a bank holiday. So you get your money on the 1st or 2nd of the next month. And you are then paid again on the 31st of that month. 2 payments in 1 month.
The regulation meant that in those cases, someone who you would think of as getting £1,000 a month was treated as having received £2,000 that month. So no or much less credit that month.
Of course, they would have been treated as having received no income the month before. But for various reasons, the extra UC they got in the previous month failed to match the loss of UC in the next.
And the erratic fluctuations in UC played havoc with the finances of people who (almost be definition) don’t have savings to fall back on.
The evidence was that some recipients ended up refusing higher paid jobs because the employer paid on the last day of the month and the recipients did not want to get into this problem.
This was the position of the DWP on that problem, produced by regulations it had drafted (represented by Edward Brown).
So the DWP accepted that the effect of the rule was arbitrary and had no policy benefit when looking at the aims of UC. The only “justification” was, to put it shortly, administrative convenience.
Rose LJ was having none of that, and took the supposed justifications apart. Read the judgment for the details.
@jreynoldsMP raises important questions about why the DWP fought the case. But I want to make a wider point.
The use of judicial review was criticised in the Tory election manifesto, which complained that it had been “abused to conduct politics by other means”.
And right wing commentators, backed by the Judicial Power Project, have complained that judicial review is overreaching and undemocratic. Why should unelected judges be able to decide that policies such as these, adopted by Ministers accountable to Parliament, are “irrational”?
But this case shows the problems with that approach. The policy had never really been examined by Parliament. It involved only some people, and explaining it took time. It could not get political traction.
Four single mothers brought this case (helped by the CPAG). If judges had been unable to intervene, this injustice would simply have carried on. Parliamentary accountability was not working.
The Court of Appeal could look at this thoroughly. And it concluded that the regulations could not be justified against the purposes of the Act Parliament had passed (indeed, the DWP didn’t try to argue otherwise).
And this is not the end of the story. If Ministers want to continue with this approach, they can go back to Parliament and argue for it: and if Parliament agrees it can pass legislation authorising this approach.
Ministers have, I think, decided not to do that but to change the rule.
But all this - far from weakening our democracy - strengthens it. The Government is accountable in court to a group that had a good case that what the government was doing was inconsistent with what Parliament had laid down. Government lost. It chose not to try to change the law.
Parliamentary accountability was not working. But accountability to the courts in the end ensured that policy was brought into line with what Parliament wanted to achieve. Far from subverting democracy, the courts were buttressing it.
So when the government talks about “abuse” of judicial review, and tries to portray judicial review cases as an undemocratic tool used by “elite lawyers” and “lefty lobby groups” to frustrate democracy, just remember this case.
Am told link to judgment didn’t work. https://www.bailii.org/ew/cases/EWCA/Civ/2020/778.html
