No one came out very well from the government’s High Court defeat yesterday morning over planned changes to long-term sickness benefit. A botched, hasty, penny-pinching wheeze, promoted by the Tories but ultimately backed by Labour, came unstuck. But there is a rather more profound difficulty with this episode. Even after reading the news, most people will still be very much in the dark about what was decided, why it matters, or what happens now. Judgments that leave us with this degree of uncertainty are perhaps an indication that something is straying into the legal field that shouldn’t be there.
Judicial intervention in cases like this not only duplicates the political process, but also subverts it
To clarify matters, in the summer of 2023 the government wanted to find ways to reduce the numbers of those seen, for social security purposes, as unable to work or do work-related activities (and hence entitled to long term benefits). It wanted to do this by tightening up some very technical criteria. This was a Conservative administration in a hurry, with a November 2023 autumn statement in the offing. It set up a consultation lasting a bit under eight weeks. This came with a few explanatory notes which were, to say the least, optimistic as to who would gain and lose, and suggested that, of course, the aim was a streamlined system of social security – not saving the Exchequer millions (though that would come in handy).
Having got back a small number of responses – mainly, it seems, unenthusiastic – the government said it still intended to move forward. Then opponents of the move, in a neat piece of lawfare, judicially challenged not the decision to change the rules, but the consultation that had preceded it. The proposals had been inadequately explained, they said; their money-saving rationale minimised; and there should have been more time to respond.
These points, in a fairly convoluted judgment (here, if you want to read it), the court accepted. There might have been a consultation, but it hadn’t been a legally proper one. It therefore had to be treated, said the court, pretty much as waste paper. It would presumably be quite possible for the government to hold another consultation, ignore the results of that one, and apply the changes anyway. But there’s the law for you.
As a matter of law, the decision may well be right. Many readers will nevertheless go away from this feeling that something is wrong here. And they would be right, for at least three reasons.
For one thing, this is a case of the law not simply acting as a constraint at the edges of political judgment, but duplicating it. The complaints about the consultation – not enough time given, information inadequate to found an informed decision, obfuscation of the real motives, and so on – may be right or wrong. But they are exactly the complaints people have raised from the beginning of time about any government action taken after a consultation.
Now, it may be nice to have this from a judge, but we certainly don’t need it. It comes perfectly well from the electorate. Indeed, one suspects the government’s image as an enemy of the long-term sick went no little way towards cooking its electoral goose in July 2024.
Indeed, we can go further: judicial intervention in cases like this not only duplicates the political process, but also subverts it in two worrying ways. For one thing, deciding how far we are prepared to trust our elected representatives, whether we think they are giving us enough information, or whether we think we are being bounced into a decision with inadequate time to make our mind up, are themselves archetypally political decisions. Do we really want the courts stepping in to second-guess our own judgment in such matters and being prepared to tell us that we have reached an irrational decision and need to think again?
Secondly, if you look at the judgment in this case, one thing stands out: the sheer technocratic rationalism of the arguments on the law relating to consultations. Consultation ‘is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested’; it must give reasons ‘to permit of intelligent consideration and response’; and ‘requires the candid disclosure of the reasons for what is proposed’. All this would be very well if the political process was like some 1950s Oxford tutorial: meet, sift the evidence, and gravely reach a rational conclusion. It isn’t: it is rightly, and healthily, a mixture of instinct, gut feeling and at times prejudice.
What has happened is that while we were not looking, the administrative lawyers have quietly muscled in on an area that was previously a matter of the rough-and-tumble of politics and sought to impose on it their own regime of order. But there is no immutable law that says that the grounds of judicial review must be immovable. A promising platform for an upstart political party might be a long hard look at the reach of administrative law and to argue for chopping it back in areas, such as political consultations, where it does little good and at times a good deal of harm.
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