February 01 2023

Heathrow and the attack on ‘undemocratic judicial activism’

Heathrow and the attack on ‘undemocratic judicial activism’

In what has clearly come as a shock to George Osborne, democratic governments are obliged to follow laws when they embark on huge infrastructure projects. In response to the Court of Appeal’s decision last Thursday, which found that the Cameronian government’s decision-making process for Heathrow’s third runway was unlawful, Osborne wrote on twitter that it was ‘undemocratic judicial activism’, and that decisions on national infrastructure should be left to the political branches.

This incredulity was echoed by Tim Montgomerie, who claimed that judges tend to “‘interpret’, rather than ‘enforce’, laws”; and doubtless had Boris Johnson not been desperate for an escape route out of his promise to ‘lie down’ in front of bulldozers, a No. 10 spokesman would have been quickly released, decrying the judges for stymying Britain’s economic prospects.

Despite what such overblown commentary suggests, the overwhelming majority of judicial decisions are perfectly ordinary applications of the law, and this Heathrow decision, and the immigration decision of the Supreme Court in DN earlier in the week, are classic examples of this.

In the Heathrow decision, the Court of Appeal was asked to consider the government’s planning process for the construction of a third runway at Heathrow. Unlike in China, where an autocratic government can construct an entire hospital in a matter of days, parliament has passed a number of laws which every government is obliged to follow- in this case, the Planning Act 2008. Among other things, this Act required the Ministry for Transport to set out how its planning proposals took into account the government’s own policy in relation to climate change.

As the Airports National Policy Statement was being drafted, the UN Paris Agreement was ratified by parliament, setting new targets in regard to the UK’s total emissions. With a change in targets, the Ministry was obliged by the 2008 Act to consider these new ambitions, and to offer an explanation as to how the policy addressed the need for the ‘mitigation of, and adaptation to climate change’. In effect, the Ministry needed to set out how a third runway at Heathrow would be accommodated within the UK’s national climate change ambitions. As the evidence to the court demonstrated, this was something which the Transport Ministry simply had not done. Instead the then Secretary for Transport, Chris Grayling (who else?), decided that the Paris Convention, which set out the government’s ambitions on climate change, was not pertinent. The court, unsurprisingly, found that it was.

More simply put, parliament passed legislation requiring the government to do ‘X’ if it wished to achieve ‘Y’. The government failed to do ‘X’. Ergo, its decision to do ‘Y’ was unlawful. Even with the most determined will in the world, this decision is not judicial activism. It is the courts enforcing laws passed by parliament. If Osborne wants to blame anyone for the failure for this policy, he should look at himself and David Cameron, and ask why they kept Chris ‘Failing’ Grayling, the man whose very name had become a byword for failure, in the Cabinet for quite so long.

The desire to move towards lowering our carbon emissions was not an obligation created by the courts, or by some ‘stretched’ interpretation of human rights or environmental laws, but by parliament, recognising that the national, and global, interest, required our emissions to be reduced, and passing legislation accordingly. In enforcing this decision, the courts were simply fulfilling their quotidian function, much as the Supreme Court did in a unanimous decision handed down earlier in the week.

In that case, R(DN) v Secretary of State for the Home Dept, the appellant was a Rwandan national who had been given refugee status, but then was subsequently convicted of a number of criminal offences, including trying to assist someone to enter the UK illegally. This exposed him to a risk of deportation at the conclusion of his sentence, which Jacqui Smith, then the Home Secretary, duly ordered. The appellant challenged this order, but was detained while the judicial review of the decision took place. Disappointingly, for the Home Office, the High Court found that the deportation order had been unlawfully made.

The question was therefore if the detention – which was done in the good faith that deportation had lawfully been ordered – was tainted by the illegality of the deportation. Unsurprisingly, the Supreme Court found that it did. The decision to deport was the foundation of all later decisions, including the decision to detain. Finding that unlawful meant the the entire edifice tumbled to the ground. Even though the Home Secretary had acted in good faith, as Lord Carnwath wrote, ‘it would be odd’ for the same department to rely on its original, illegal, decision, as providing the ‘validity of later actions based on it’.

While this decision drew fewer headlines than the Heathrow judgment, it is another example of the government not losing in the courts because of some misconceived ‘activism’, but simply because the government made a mistake. In neither of these decisions were the courts telling the government or parliament what policies it must pursue- but simply that in pursing them, they must remain within the law. Particularly in the Heathrow decision, the Court of Appeal was at pains to emphasise- doubtless anticipating the political fallout- that the merits of a third runway were ‘none of the court’s business’ and that they ‘have not decided and could not decide that there will be no third runway at Heathrow.’

In this era of judicial denigration, it will be necessary for the courts to be become more media-savvy. Previously, the Lord Chancellor would have been leading their defence, as both a member of the government and a head of the judiciary (one of the many contradictions in our constitution, but one which oiled the cogs of government), but Blair’s constitutional reforms put an end to this anomaly. Blair preferred a stricter conception of the separation of powers, and removed the judicial element from the Lord Chancellor’s role, and coalescing the remaining parts of the role into the new post of Justice Secretary, with the Lord Chief Justice (LCJ) becoming the head of the judiciary.

So far, Lord Burnett, the LCJ, has been unperturbed in the face of the attacks on the judiciary. Speaking at an event last week , he told the media that the promised constitutional reforms were ‘entirely appropriate for Parliament to look into’ and that ‘it is not something to get hysterical about’. While this moderation is admirable, and not entirely surprising for a branch of government that is loath to become involved in politics, there is being stoic, and there is becoming complacent. The judiciary should be wary of the latter.