WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
December 03 2020
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

A tough act to follow

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A tough act to follow

As the actors in Parliament have changed, so have those across the square, with Lord Reed replacing Lady Hale as President of the Supreme Court, and Lord Hamblen completing the complement of justices.  This shift takes place at a constitutionally delicate time, with Lord Reed now commanding a court that has never had more authority.  The two Miller decisions have emphasised the role of the judiciary in interpreting the nature of the UK’s constitution, with Lord Reed likely to face the question of whether to keep the court on this course, or guide it into calmer waters.   

For the two Miller decisions to have taken place during Baroness Hale’s presidency is apposite, the constitutionally revolutionary nature of both decisions symbolic of the ground-breaking character of Hale’s career.  As the first woman to be Law Commissioner, the to be a law lord (then Supreme Court justice) and to be President of the Supreme Court, Hale’s career has been accompanied by this constant refrain.  More significant than her single-handed diversifying of the legal profession, however, has been her role in developing the law, infusing it with a more potent interpretation of principles and values, an infusion that accorded the other constitutional powers due deference, whilst emphasising that the courts have a role to play in our constitutional dance as well.

Miller/Cherry II,  where the Court ruled the prorogation unconstitutional, was emblematic of this, with no undue obeisance paid to the executive, but instead a reminder that the three constitutional powers exist together, but in harmony, not conflict. 

It is this willingness to hold the executive’s feet to the fire which may be most missed in the post-Hale court, particularly with Lord Reed taking up the presidency. Hale was avant-garde, and whilst an eminent jurist  Reed is archetypal, both in appearance and in jurisprudence, particularly in the constitutional sphere. In his judgments, Reed tends towards executive deference, often drawing clear boundaries between the legal and political arenas, and denying judicial authority in matters he deems too political for the judiciary. 

Such reluctance was clearly seen in the first Miller case, where the question of how the UK was to begin its departure from the European Union was decided by the Court.  There, the majority, which included Baroness Hale, recognised that EU law had been woven into our domestic affairs, and that the standard presumption of executive hegemony on foreign treaties, which would have allowed the prime minister to unilaterally take the UK out of the EU, could not apply.  Instead, Parliament’s consent was necessary.  

Lord Reed dissented on this, preferring the road more travelled.  He would have permitted the executive to begin the Article 50 process alone, writing that the courts should ‘not overlook the constitutional importance of ministerial accountability to Parliament’, and that the ‘legalisation of political issues is not always constitutionally appropriate’. 

Relying on ministerial accountability is often a futile hope in UK politics. The nature of the first past the post system often serves to quieten the legislature, with the precarious minority and coalition governments of recent years at odds with the UK’s tradition of strong government majorities.  The hive of activity that Parliament became post-referendum, where backbench grandees like Sir Oliver Letwin and Hilary Benn exercised outsize influence was not a new norm, but a fleeting anomaly.   

The general election at the end of 2019 has brought this vulnerability to a halt, with Parliament now once more securely under the government’s control. It is at these moments, when the government is at its most powerful, that we need the courts to be at their most resilient, as the House of Lords showed when they declared Tony Blair’s post-9/11 terrorism legislation incompatible with the European Convention on Human Rights.  This decision, which Lord Bingham (arguably our greatest law-lord) viewed as his most significant, held that the executive could not detain foreign terror suspects indefinitely without trial, emphasised the role of the judiciary in holding both the executive and Parliament to account. 

This is a role that is likely to be needed ever more under a Johnsonian government.  Already, Johnson has reiterated his intent to make good on his promise to fetter the courts, with a constitutional commission in the process of being established, presumably to try and confine the power of the courts.  If past practice is anything to go by, any curtailment may come through the use of ouster clauses.  These clauses seek to render some decisions invulnerable to judicial review, through declaring that, for instance, they ‘shall not be subject to appeal or liable to review in any court’.  

The courts are rightly sceptical of such provisions, particularly where they grant unchecked authority to members of the executive branch.  In Evans v Attorney-General, which concerned the release of Prince Charles’ ‘black spider memos’, the Attorney-General tried to unilaterally override the Upper Tribunal’s decision to release the memos.  The Supreme Court took a dim view of this power, refusing to allow the executive branch to overrule the judiciary on whim alone.  

Rather than enhancing the powers of the executive directly, it is likely that the government draftsmen will instead try to hive off decisions of independent tribunals from the purview of the High Court.  This was the issue faced in Privacy International, where the government argued that a clause in the Regulation of Investigatory Powers Act (RIPA) ousted the courts, with the decisions of the Investigatory Powers Tribunal, created by the Act, ‘not (being) subject to appeal or liable to be questioned in any court’.  Unsurprisingly, this ouster clause went the way of nearly every other  since Anisminic, with the Supreme Court finding by majority that where the tribunal made an error of law, its decisions would be as susceptible to review as any other court.

Lord Reed split the difference between these two cases, ruling with the majority in Evans that the legislation unduly elevated the executive, isolating it from scrutiny, parliamentary or judicial; but in Privacy International, concurred with Lord Sumption’s dissent.  There, Lord Sumption emphasised the fundamentally judicial nature of the tribunal’s decisions, writing that ultimately, there is an obligation on the courts to accept that ‘effect must be given to Parliamentary intention’. 

These two decisions show the tension in Lord Reed’s jurisprudence, with an inclination towards deference in conflict with the recognition that some executive and legislative acts can be constitutionally troubling.  This is most apparent in Unison, where he embarked on a full-throated defence of the right of access to the courts, striking down the government’s setting of court fees on the basis that it ‘effectively prevents access to justice’ and asserting that ‘the courts do not merely provide a public service like any other’. 

These moments of judicial authority are nonetheless still the exception, rather than the norm to Lord Reed’s jurisprudence.  Looking beyond constitutional fundamentals, his judgments suggest an reluctance to intervene in defence of human rights. This reluctance was apparent in Nicklinson, where on the question of assisted suicide, the ‘moral issue’ meant that Parliament had to be accorded, in his view, a ‘wide margin of judgment which…should normally be respected’.   

Whilst euthanasia is a matter than many courts have struggled to engage with, Reed’s judgment in a more recent decision, Northern Ireland Human Rights Commission, is a greater indication of his instinctively deferential stance.  In this judgment, which concerned the absolute prohibition on abortion in Northern Ireland- a clear denial of the equality of rights between women in Northern Ireland and on the UK’s mainland- he refused to recognised that the prohibition curtailed their rights.  Instead, the fact that women in Northern Ireland were ‘free to travel to England or Scotland’ and that the case raised questions of ‘moral judgment’ meant that the issues the case raised were ‘pre-eminently matters to be settled by democratically elected and accountable institutions’.  

As we gain a greater understanding of this government’s real ambitions, rather than those presented on the campaign trail, the significance of Lord Reed’s innate reticence, should he not overcome it, will become clear.  So far, the omens are less than propitious, with more pointlessly hardline terrorism legislation being promised, alongside proposals to increase prisoners’ sentence length.  Whilst the Lords may try to resist, as they have done on the Brexit legislation, forcing the Commons to think again, their concerns, particularly those that are out of step with public opinion, can easily be disregarded by a confident government with effective whips. 

Working on the assumption that this government will strain at its constitutional leash, Baroness Hale, as president, has drafted the roadmap for Lord Reed and the court to follow. In unifying the Court around a single, authoritative judgment in Cherry/Miller II, she has elevated the rule of law and the Supreme Court’s authority.  The question is whether Lord Reed will be willing to take up the baton, setting aside his inhibitions in order to preserve our constitutional model, or if he will revert to type, paying obeisance to the will of the executive.  His recent decisions, including Miller II and Unison, show that he is willing to  depart from absolute deference to Parliament. We must hope that faced with a reinvigorated executive, and without the lead of Baroness Hale, he is willing to hold the Court to this course, and when it comes to the question of whether Parliament can do anything, finds that it can’t do that.