July 04 2022

‘Under Lord Reed, the court has retreated into itself’

‘Under Lord Reed, the court has retreated into itself’

Governments are not supposed to be ‘encouraged’ by the courts. The courts are supposed to hold governments, regardless of their political ideology, to account, not to act as their cheerleaders or corroborators. Yet this is how the Lord Chancellor, Robert Buckland, described his attitude towards the Supreme Court’s recent line of decisions, which he praised for remedying the ‘potential problems of judicial overreach’.

This is a dramatic shift from the low point in relations that had existed between this Conservative government and the judiciary, with Boris Johnson, the prime minister, and Jacob Rees-Mogg, the Leader of the House of Commons, condemning the Court after its decision in Miller II. There the justices unanimously struck down Johnson’s prorogation of Parliament on the basis that it undermined fundamental principles of British democracy, one of many decisions, including Miller I and Privacy International that sought to accord respect to both the executive and Parliament while also upholding values integral to the British constitution.

It is this change in judicial attitude that probably explains the reduced character of the government’s Judicial Review and Courts Bill, published last week. Rather than the much hyped reforms that would have sought to fundamentally rewrite the relationship between the judiciary, the executive and Parliament, we had a comparatively anodyne bill, with reforms made to the operation of quashing orders, allowing the courts to halt unlawful decisions prospectively as well as retrospectively (although as Tom Hickman, a barrister and professor at UCL, has written, these are not as inconsequential as they may first seem) and changes made to the Cart appeals process in the Immigration Tribunals system.

Little else would explain such a volte-face from the government’s previous rhetoric. It is impossible to believe that Johnson has undergone some Damascene conversion, and it is equally implausible to suggest that the government no longer has the stomach for a fight with the courts. Only last week, the Home Secretary put forward the Nationality and Borders Bill, a morally bankrupt piece of legislation that seeks to criminalise, rather than help, asylum seekers, while the policing bill, which places significant constraints on the right to protest, is inexorably making its way through the House of Commons. Any government willing to put forward authoritarian, nationalistic legislation like this is not going to shy away from a fight with the judiciary. So, we are left with the only probable conclusion, which is that that the government is no longer interested in checking the power of the courts because it no longer thinks the courts need checking.

Neither is it deniable that there has been a shift in judicial attitude, particularly among those sitting across from Parliament at the Middlesex Guildhall. Under Baroness Hale, the Supreme Court was authoritative, respecting the other branches of government while emphasising that it was ultimately its responsibility to uphold the rule of law.

Under Lord Reed, the Court has retreated into itself, becoming less confident and more deferential. No longer are decisions of the executive subject to searching scrutiny, but instead there is a focus on the ‘democratic credentials’ of an act, such as whether it was introduced after a ‘manifesto commitment’ or subject to ‘vigorous debate’ in the House of Commons.

The last two weeks alone have seen the Court hand down decisions that approved the cuts to child-tax credit despite their discriminatory consequences on women, and which allowed children to be kept in solitary confinement. In the former decision, Lord Reed even saw fit to condemn charities and campaigning organisations for trying to use the courts, as he sees it, as a way of compensating for their failures in the political arena. Not only does this show a hopeless naivety about how politics is conducted, but it ignores the reality which is that in a modern liberal democracy, there is no bright-line boundary between ‘legality and the political process’.

The consequences of this naivety are all too clear to see. Alongside last week’s troubling decisions, Lord Reed’s presidency has seen the Supreme Court permit the Home Secretary to unilaterally strip British citizens of their nationality without due process; while a decision handed down at the end of last year allowed ministers to sidestep their pledges and international commitments to engage with the threat of climate change. In this latter case, the UK’s Supreme Court seems especially out of step with its brethren across the globe, who are doing much to emphasise the existential threat that climate change poses to human rights, and are also more adroitly balancing the need to respect both democratic decision-making and fundamental rights.

Nor is there any indication that there is going to be a shift in attitude among the Supreme Court justices. Not one of these decisions has sparked a frustrated dissent, though we have a government openly breaking international law, attacking vulnerable groups like refugees, and threatening the judiciary if they don’t fall into line. Instead, the Court seems – at least in part – accepting of the philosophy espoused by the Lord Chancellor in his speech, which is that ‘the executive and the judiciary are servants of Parliament’ and so, ultimately, answer to the people.

Even if we disregard the political reality which is that this government currently has near hegemonic control over Parliament, and the irony that is a Lord Chancellor who saw his prime minister try to summarily dismiss Parliament now professing obeisance to it, this philosophy is fundamentally flawed.

If the Courts were in hock to Parliament in the manner that Buckland envisages, the UK constitution would be hollow, an empty vessel upon which Parliament could write or unwrite laws as it wished. But as the courts have repeatedly made clear in the past, there are limits upon Parliament’s authority, the most universally accepted of which is that it cannot fully abolish judicial review. This would be the case even with the clearest of mandates from the people, such as if a referendum was held, which in part is why the courts are not servants of the people. Judges answer to the law, not to the masses.

There is no little irony in the fact that in a bill originally intended to limit judicial authority, there is the chance that it will actually enhance it, with the changes to quashing orders potentially giving judges greater authority over the operation of legislation. Yet this is little solace when you consider that this legislation is only so benign because judges are unwilling to use the authority they already have to defend the British constitution and to check an overpowerful executive. In straining to avoid the accusation of judicial activism, the justices have become inert, and so complicit in the Johnson government’s constitutional vandalism.