WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
October 28 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Two sides of the Supreme Court

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Two sides of the Supreme Court

Recent decisions have shown us two sides of the Supreme Court. One side, seen in Uber, shows us an assertive institution, confident in its powers, and willing to challenge authority and hold it to account.  The other, seen in last week’s Begum decision, is a pale shadow of this, a meek body unwilling to impose itself or scrutinise the decisions of those in authority, instead preferring to defer to Parliament’s democratic legitimacy and to ultimately trust in the wisdom of crowds.

It is when courts act decisively that we see their real power, and how they can protect and enhance the dignity of those under their jurisdiction.  This was evident in the Uber decision, handed down by the Supreme Court a fortnight ago, where the justices recognised that Uber drivers were employees in all but name, not, as Uber argued, self-employed contractors.  Integral to decisions like this is a willingness to examine the defences offered up by those in power, to lift the facade erected by their lawyers to peer at the reality behind.

For Uber, the advantages of keeping its drivers as self-employed were legion.  It saved them from the expense of taxes like national insurance, protected them from minimum wage requirements, and otherwise absolved them from the burden of employee rights.  Of course, the fact that Uber gained pecuniary advantages from labelling its drivers contractors, rather than workers or employees, was not a pertinent factor in and of itself.  But what was crucial was the Supreme Court’s willingness to test this assertion rigorously.  It didn’t simply take Uber at its word, accepting that because the written agreement between it and the driver described Uber as the provider of ‘technology services and…payment collection agent’, it was fair to accept that Uber’s primary role was as a ‘booking agent for drivers’.

Here, the Supreme Court was helped by the fact that the arguments put forward by Uber were a nonsense.  Its drivers have almost no control over their working conditions- a prerequisite for any real independent contractor- but instead are forced to relentlessly toe the Uber line.  They have to accept the rates of pay offered by Uber, meet the acceptance rate of rides imposed by Uber, and operate entirely according to any other conditions Uber may enact.  Rather than being a relationship of mutual respect and independence, it is, as Lord Leggatt said, ‘a classic form of subordination that is characteristic of employment relationships’.

Such an outcome, which recognised how technology can affect the nature of employment contracts and upheld the drivers’ rights, would not have been possible if the Court had not approached Uber’s arguments with scepticism.  Such scepticism was completely lacking in the Court’s judgment in Begum v SSHD.  Instead, that judgment was rooted in the need for ‘respect’ to be shown to the Home Secretary’s decision to strip Begum of her citizenship on the basis that it was ‘conducive to the public good’.

According to the Supreme Court, such respect is mandated by the fact that the deciding authority in Begum was an arm of the state, rather than a private corporation, and because the decision went to a ‘matter of national security’.  Consequently, rather than the courts assessing the legitimacy of the Home Secretary’s decision, the justices took the view that the ‘Home Secretary…has been charged by Parliament with [such a] responsibility’ and that, seemingly,  it is therefore Parliament who should hold them ‘democratically accountable…for the discharge of that responsibility’.

Lord Sumption, writing in The Times yesterday, argues there is a common thread linking Begum and the Supreme Court’s decision in 2019’s prorogation case, Miller II- that of the ‘centrality of Parliament’.  This is, at first glance, persuasive. In both cases, the Supreme Court has emphasised how Parliament must be able to hold the executive to account- in Miller II, by ruling that the legislature cannot simply sit at the government’s whim, and in Begum, by ruling that Parliament is responsible for holding ministers to account for how they use the powers Parliament grants them.  What Sumption and the Supreme Court have forgotten, however, is that Parliament’s ability to scrutinise the government is prospective, not retrospective. Unlikely though it may be- no legislature in the world is going to vote to improve the rights of suspected terrorists- should Parliament decide to check the Home Secretary’s powers here, it will only affect future decisions.  For Shamima Begum, any parliamentary fix, however improbable, will come too late.

Despite what the Supreme Court may have ruled, this how parliamentary power should be used.  Parliament is not responsible for examining the minutiae of every decision made by the executive under powers granted to it through legislation.  Remedying specific injustices is instead the role of the courts.  When Parliament gives powers to ministers- even powers that seemingly grant absolute discretion, such as if the ‘deprivation [of citizenship] is conducive to the public good’- there is the expectation that they will use them within the bounds of that power.  Where the bounds of the power lie is a matter for the courts, not the decision-maker.

This was not what the Supreme Court decided in Begum. It may be that Begum is such a threat to the state that keeping her detained in the desert wastelands of Northern Africa is the only safe place for her.  But such an extreme course of action has to be scrutinised and justified, not simply given ‘respect’. Such scepticism undergirded the approach taken by the Court of Appeal, which acknowledged, much as the Supreme Court did, that ‘fairness is not one-sided and requires proper consideration to be given to the position of…Ms Begum but [also]…the Secretary of State’.  However, it did not then capitulate to the Home Secretary, but examined the national security rationale, finding that Begum could not be reasonably compared to other British terrorists kept beyond British shores because of the threat they posed, and that other less draconian measures were available that would preserve her rights and still keep the nation safe.

If the Home Secretary is going to strip someone of their citizenship, it should be justified by more than their saying ‘because I said so’.  That is the argument of a toddler, not a Secretary of State, and it should have been treated as such by the Supreme Court.  Instead, the justices gave way, like parents terrified of their child and desperate for any relief from its screams. As some commentators, including me, have pointed out, the courts have been under growing political pressure, which this judgment will perhaps relieve, at least for the moment.  While it is doubtful that the Court was intentionally motivated by such outside concerns, it is alarming that the question is even being asked.

The judiciary should not instinctively doubt the arguments of those in power, but they should approach them with a quizzical eyebrow, and a determination to test their rigour.  This is how the Supreme Court examined Uber’s arguments and how it found them wanting.  Such an approach should have been repeated with the Home Secretary.  Instead, the Court, deprived of its more liberal and interventionist justices, like Baroness Hale and Lord Kerr, gave in. It recognised, rather than scrutinised, executive power.

2 thoughts on “Two sides of the Supreme Court

  1. Difficult to understand how the 5 judges on the bench got this all wrong! We may never know.

  2. Really enjoyed this article and the points you raise. However, I wanted to point out that Shamima Begum is not in the ‘desert wastelands of Northern Africa’ nor has she ever been in the last 6 years. She is in detention in a camp in Kurdish-held northeast Syria, near the borders with Turkey and Iraq. I think it is helpful to situate her accurately when weighing the case for her rights, especially as this is the situation from which she must somehow extract herself in order to meaningfully participate in her appeal.

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