The government wanted to rein in the Supreme Court. Now it may not need to

Long accused of political meddling, the UK’s top court may finally be winning the approval of conservative politicians. But is that really something to celebrate?

October 16, 2021
Marc Zakian / Alamy Stock Photo
Marc Zakian / Alamy Stock Photo

The summer of 2021 was an unusual time for those concerned about the government’s assault on the rule of law. The Johnson administration had spent two years briefing in the most sinister way against the UK Supreme Court. The culmination of its plans, the Judicial Review and Courts Bill, was awaited with trepidation by liberal lawyers across the country. Yet when it was published, with limited exceptions the proposals seemed—well, sensible.

Some commentators called the legislation a “damp squib.” And after all that had happened, they had a point. The 2019 prorogation judgment—in which Supreme Court president Brenda Hale pronounced the government’s suspension of parliament “unlawful, void and of no effect”—had provoked spitting fury at the time. One controversial former adviser had pledged to “get the judges sorted.” A review was set up to consider changes to the role of the courts, and its modest recommendations were distorted by ministers. Everyone knew the government was plotting its revenge. So when the moment actually arrived—or rather, didn’t—many were left scratching their heads.

There was something they had not accounted for: a change of attitude not in government, but on the court. And as the weeks passed, some began to wonder whether the government’s decision wasn’t so surprising after all. They asked if the government no longer needed to rein in the judges—because they have reined in themselves.

The Supreme Court has experienced a changing of the guard of late, with five retirements since the start of 2020. That includes Hale, who has been replaced as president by Robert Reed. And picking over judgments delivered in the time since prompts a series of uncomfortable—but urgent—questions: has the UK Supreme Court changed the way it decides cases? In doing so, has it become more deferential to the government? And in the most extreme cases, does that mean it has become a less surefooted guarantor of the rule of law? As the bill returns to parliament, and Dominic Raab settles into his new role as justice secretary, the debate is a newly important one.

In research for this piece, I spoke to several former justices of the court (largely on a background basis), respected QCs and constitutional experts. The sense emerged that yes, this court is behaving differently. And, for those concerned that the role of the court is sometimes to push back against an illiberal Johnson government, that change merits scrutiny.

Helen Mountfield, the leading human rights QC, said: “It’s hard to tell if fear of censure for ‘inappropriate activism’ is behind what I think is the excessively cautious and deferential language of the current Supreme Court. But I fear it might be.” The constitutional commentator Nicholas Reed Langen echoed her concerns, lamenting the “trend towards deference.”

Jonathan Jones, the former head of the Government Legal Service who resigned over the government’s plan to break international law, told me the court’s recent decision making “may be interpreted” as showing “a conservative constitutionalist view.” A change is apparent, he says, in “some of the reasoning and some of the language.”

But what does that look like? The Hale court was viewed as a progressive force, championing the rights of the vulnerable and standing up to an overbearing executive, at least in its supporters’ imaginations. Yet of the justices in place when the prorogation was overturned, Hale, Carnwath, Wilson, Kerr (who died shortly afterwards) and Black have left. Several of these names were firmly in the progressive camp. And the rotation of cast, with new appointments and a shifting of seniority, matters.

Simon Brown, a former justice of the court and all-round legal heavyweight, is impressed with its current direction, but explained to me that in his experience, “a change in a court’s presidency may indeed to some degree affect not only some of the court’s practices but also, if perhaps only marginally, its approach in certain areas of actual decision making. This may be the more likely,” he continued, “if, as in the case of Lady Hale’s retirement, it is accompanied by the retirement (tragically followed by his all-too-early death) of another member of the court… whose views so very regularly coincided fully with her own.”

Helen Mountfield: “It’s hard to tell if fear of censure... is behind what I think is the excessively cautious and deferential language”

As Reed took up the presidency, sceptics started to pick over his previous judgments: he had sided with the government in the case on triggering Article 50 to commence the Brexit process. Did that mean he took an expansive view of executive power? It is a question given new force by a string of recent cases.

In the case of SC, handed down in July, a pair of single mothers and their children—assisted by the Child Poverty Action Group—sought to challenge the government’s policy of restricting child tax credit and universal credit payments to two children, arguing that it was unlawfully discriminatory and in contravention of human rights law. The courts will often afford wide latitude on issues of state spending. But the Supreme Court seemed hesitant to engage seriously with the disproportionate impact on women, and more striking than the (unanimous) judgment against the claimants was the language used.

Authoring the verdict, Reed despaired of legal challenges “brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.” He added that certain cases of this kind “present a risk of undue interference by the courts in the sphere of political choices.”

It provoked an instant reaction. “There’s no doubt that will have been music to the ears of some in government, who regard—I mean, look, to be honest there are some in government who regard any challenge as an irritant,” said Jones. Leading human rights academic Conor Gearty QC told me: “I was surprised by the strength of that feeling, distilled through seven judges, that it survived multiple drafts and appeared. It was almost ill-tempered.”

Hale and her successor. Has the change in personnel led to a change in how cases are decided? PA Images / Alamy Stock Photo Hale and her successor. Has the change in personnel led to a change in how cases are decided? PA Images / Alamy Stock Photo

Brenda Hale and her successor as president, Robert Reed. Has the change in personnel led to a change in how cases are decided? PA Images / Alamy Stock Photo

But for those who believe the Supreme Court has gone soft on the government, this was not an isolated incident. Another judgment often cited by critics of the court concerns Shamima Begum, who left the UK to join Islamic State aged 15 before seeking to return. After the home secretary had stripped Begum of her British citizenship, she sought to appeal. A unanimous Supreme Court recognised that the right to a fair trial could not be guaranteed in Syria, yet refused her re-entry to the UK on grounds of national security.

Again, the language was striking. The right to a fair trial was not a “trump card,” the court said, while the decision of the home secretary “was not given the respect it should have received.” This last phrase had an unfortunate ring. Was the Supreme Court becoming submissive to an illiberal government?

When I asked one public law silk this question, they stated their concerns bluntly: “It’s very dangerous, because it means that governments are not held to account for standards which they purport… to uphold.”

But not everyone disapproves of the change in direction. The former justice secretary, Robert Buckland, said in July he was “encouraged by recent decisions of the Supreme Court,” and suggested the courts themselves were taking steps to correct “any potential problems of judicial overreach.”

Simon Brown told me “it could well be thought that” with “the Supreme Court’s latest change in its presidency, the time had perhaps come for some measure of retrenchment” in its “approach to judicial review in a political context.” The new president will be in a strong position “to reassure the government that no radical rebalancing of the relationship between the executive and the judiciary is now required.”

Richard Keen, the former advocate general for Scotland, was similarly supportive: the court is now “more certain and consistent in its identification of the sometimes-blurred boundary between the law and politics; between the role of the courts in upholding the rule of law and holding the executive to account and the respect required of the Queen in Parliament.”

“If judgments start being written with half an eye on the opinion of the government, does that compromise judicial independence?”

But Buckland’s praise raises profound questions. For a court’s decisions might sometimes win the approval of cabinet ministers and lawyers of the calibre of Brown and Keen. But no court should ever view the approval of a minister, even if he is the lord chancellor, as something actively to aim for.

On taking the judicial oath, judges swear to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” There is an argument that judges have always had to be aware of political context, and that a sense of the likely political impact of a decision is perfectly acceptable. But if judgments start being written, let alone decided, with half an eye on the opinion of the government, does that compromise judicial independence? Can the justices really be said to be fulfilling their oath?

“These are all very serious, grown-up, clever, independent people,” said Jones of the Supreme Court justices. George Peretz QC would not argue with that. But he did add that “it is hard to read parts of Lord Reed’s judgment in the child benefits case as being written without at least half an eye on the current government’s ‘politics by other means’ critique: there was no need for him to make general comments critical of NGOs and charities bringing such cases if he had not chosen to do so.” Constitutional expert Reed Langen says the justices appear to be “alive to the political consequences of their judgments.”

It is not only Reed who has been subject to criticism: “I think the real issue is that Lord Reed and (especially) Lord Sales, who was for many years the Treasury devil [counsel whose job it is to win cases for the govermment], are just pretty executive-minded and small-c conservative in the first place,” was the verdict from the anonymous QC. The duo “have the greatest sway in the public law cases, which are the source of controversy,” they added.

For progressives, however, all is not lost. The 2017 Unison case was a great victory, which declared the government’s introduction of fees for employment tribunals to be unlawful. The judgment—which championed the rights of everyone, no matter their income, to access justice—was written by Robert Reed.

For Jones, there is scope for change which does not impinge on the actual decisions. Extrajudicial work can help “to ensure that the relationship with government and indeed parliament is a cordial and productive one.” Reed has held meetings with the speakers of both Houses about improving understanding. This may be a sensible middle-ground way “to try and lower the temperature.”

Ultimately, Jones continued, “all these different elements of the constitution have got to find a way of living with one another… and if you're in a constant pitched battle, that is just no good for anybody. So any attempts on any side to make the relationship work in a civilised way are a good thing.”

For this to succeed, the government must uphold its own side of the bargain. And its cooperation is far from assured. On coming to office, it showed a willingness to tear up whatever rules got in its way. The new justice secretary Dominic Raab is a hardliner who may yet resume the constitutional vandalism. Under such circumstances, can the court afford to play nice? Conor Gearty will watch its new direction “with great interest,” but “concerned that if politics no longer plays… fair, then for the courts to opt out… I think that’s a net loss.”

This article originally described Lord Sales as Supreme Court deputy president. That position belongs to Lord Hodge and the text has been corrected

The description of the unnamed QC has been further anonymised