Adjudicating austerity: an empirical analysis of judicial decision-making in the challenges to the law and policy that implemented austerity in the UK

The 2008 global financial crisis had a major impact on the UK’s public finances. In response, the 2010 and 2015 governments implemented an austerity programme to reduce spending. It was achieved by primary legislation, delegated legislation and discretionary decision-making powers. The central question this thesis answers is whether, in adjudicating judicial review claims that challenged the law and policy that implemented austerity, the limits of adjudication envisaged by political constitutionalism were exceeded.

Political constitutionalism holds that the resolution of disagreements about what policy or course of action ought to be adopted are best resolved by ordinary democratic and political processes rather than legal processes. Some political constitutionalist scholarship claims, in reliance on examples of decision-making in judicial review, that political decision-making has become increasingly subject to judicial control. There is existing literature which suggests these claims are problematic empirically because of the selective use of case law. This thesis therefore tests the claims of political constitutionalism empirically in the context of the case law in challenges to the austerity programme.

The methodological approach is to identify: (1) the adjudicated judicial review claims that challenged the law and policy that implemented austerity; and (2) the limits of adjudication envisaged by political constitutionalism. The thesis then assesses whether those limits were exceeded in the identified judicial review claims in three modes of judicial decision- making: the interpretation of legislation; the application of common law grounds of review; and adjudication by reference to the European Convention on Human Rights and European Union law.

The thesis finds limited evidence of the judiciary exceeding the limits envisaged by political constitutionalism. It finds, however, some support for political constitutionalism in identifying clear evidence of the judiciary adopting more intensive and less deferential standards of review in challenges to political decision-making relating to the administration of justice.