Question: What do Denise Brewster and Fatemad Reshad have in common?
Answer: Both are very recent beneficiaries of the exercise of judicial control over executive power.
Meaning what, exactly? Well, Fatemad is an Iranian infant who travelled to the US this week to undergo potentially life-saving heart surgery at a Portland hospital. Her planned treatment had been jeopardised by Donald Trump’s executive order on immigration, signed on 27th January and popularly reported as the ‘Muslim ban’. According to The Independent, a court in Seattle granted a temporary restraining order on the ban, allowing Fatemad to travel to Oregon in time for the operation to take place.
So what about Denise? Well, she challenged a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 which says that that where a scheme member died leaving behind an unmarried, co-habiting partner, that partner would not receive survivor’s pension benefits unless the member had filled in a benefits nomination form prior to death. The case went all the way to the UK’s Supreme Court, which decided on 9th February that the requirement in the regulation was incompatible with the European Convention on Human Rights and should therefore be set aside.
So both cases involve a challenge based not on the fact that the defendant has done something wrong in law, but a successful challenge to the law itself. It is not argued that a particular legal provision has been broken, misapplied, or even wrongly interpreted – it is argued that it is simply wrong.
The USA has a long tradition of the judiciary exercising control over executive decision makers at both State and Presidential level. The idea of the US Supreme Court ‘striking down’ an enacted law is familiar from films and literature, and even non-lawyers outside the USA will have heard of famous decisions such as Roe v Wade on abortion rights and Brown v Board of Education of Topeka on segregation in education. This is one reason why US Supreme Court Justice nominations are intensely political decisions.
By contrast, the curb on executive power in the UK has historically come from the legislature – Parliament. The Prime Minister, or even cabinet, has limited ability to take action (and cannot enact primary legislation) if she cannot carry the will of Parliament. But it’s undeniable that we’re seeing rapid (okay – rapid in constitutional terms!) movement towards both greater judicial scrutiny of executive actions and legislation, and also a greater willingness of the courts to ‘strike it down’ in extreme cases. There are lots of reasons for this and lots of arguments as to whether it’s a trend that will continue to accelerate, or if other factors (particularly our withdrawal from EU) may serve to slow it down.
Employment law is at least as susceptible to this sort of creative judicial challenge as any other area – just look at the seismic changes we’ve seen in relation to holiday pay over the last two or three years. In these ‘interesting times’ you can rely on us to have our ear to the ground about the latest developments, however they arise, and to give you the legal info you need to get on and do your job.
In the meantime, do have a look at that pension scheme and see if your own scheme requires co-habitees to nominate a beneficiary. Denise Brewster’s perseverance is likely to mean changes to many public sector schemes, which have over 12 million members between them. Private sector schemes are not directly effected by the decision, but often have similar clauses.
If you’d like to talk it over, do please give us a call.