Just ahead of my presentation at the 2013 Society of Legal Scholars Conference today in lovely Edinburgh, I’m writing this very short blog, which I plan to update, hopefully having received feedback from conference delegates.
My basic contention is that austerity measures impinge on socio-economic rights. As such, interferences have to be justified by recourse to proportionality. In other words, e.g. salaries for public employees are slashed by 10%, in order to reduce public spending and save the economy. How can we make a rational argument that 10% is proportional and not arbitrary? In order to answer this question, we need to look into theory as well as current practice of constitutional review.
What is happening right now in Portugal has not really received any good, in depth, coverage by the press. Since 2012, the Portuguese Constitutional Court has been regularly called to review austerity measures and has considered some of them to be in violation of the constitutional principle of proportionality.
So, just for now, as a teaser for a more detailed blog, how can the Portuguese approach compare to the judicial review of the bedroom tax? Has there been adequate examination of proportionality or has there been simple deference to government policy? And actually, how far are UK judges supposed to go when reviewing austerity measures?
I think we can find a principled approach to this issue, based on the writings of Robert Alexy and his laws of Balancing. More of that in the next blog.