Economic Austerity, Human Rights and Judicial Deference: A Case for a More Rigorous Judicial Role

Economic austerity measures have had a huge impact on the provision of welfare for the most vulnerable members of society. Given the cuts to welfare benefits, vital services and increasing threats to livelihoods, there is a growing body of precedents that challenges the status quo. However, most of these cases have been met by total judicial reticence. The central reason for this relates to the constitutional division of labour, which is often underpinned by deference based arguments that point to the institutional differences between the courts and elected branches of government. Understanding the role these factors play in the courts’ reasoning, especially in terms of how they affect the outcome in cases will be critically examined in Section I. In Section II, I will address whether there is a good case for greater judicial engagement in the adjudication and enforcement of social rights under the current integrated approach, by which courts read socio-economic interests into civil and political rights. By answering in the affirmative, I will argue that deference-based arguments as well as the oversimplified dichotomy between civil/political vis-à-vis social rights is unsustainable. I will argue that there is a good case for judicial engagement in the adjudication of social rights. As such, I opt for a more limited claim, namely, that an incremental activist approach which centers around the importance of dialogue may work. Lastly, I examine the unique constitutional structure of the UK, particularly sections 3 and 4 of the Human Rights Act 1998, and the way in which dialogue fostered between the judicial and legislative branches may open room for a more engaging approach to social rights adjudication.