The “bedroom tax” judgment in the High Court is a severe blow to disabled tenants in council and housing association accommodation. But it is more. It is an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the European Convention on Human Rights.
In Lord Justice Laws the Government seems to have an anti-Strasbourg champion, ready to return to an age when judges would offer “due deference” to the governmental authorities and intervene in executive or administrative decisions only if they were “manifestly unreasonable”.
Sadly, Laws seems not to consider it “manifestly unreasonable” to impose what amounts to a fine on disabled tenants who need more space in their homes than the average person.
Laws takes a strong constitutional stance against judicial intervention in government decisions in his rejection of claims that the bedroom tax is discriminatory in R (MA and Others) v Secretary of State for Work and Pensions (30 July 2013).
His judgment looks like a remarkable attempt to rein in the courts when considering decisions made in the political sphere. He states:
“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 public controversy.”
Judicial restraint requires that judges limit themselves to considering the process of decision-making, not the outcome of the decision itself – otherwise Laws fears judges could end up reviewing the substantive merits of almost all public decision-making – whether decisions are morally right or wrong rather than simply whether they were properly arrived at.