The Supreme Court Retreats
Common Sense: Conservative Thinking for a Post-Liberal Age was published in May by the self-styled Common Sense Group of around fifty Conservative MPs. Along with chapters on such themes as ‘What is Wokeism and How Can it be Defeated’, ‘The conservative case for Media Reform’ and ‘A Common Sense Model for Poverty’, are the reflections of two MPs on ‘The Judicial Activists Threatening Our Democracy’. The group has received favourable coverage from the Telegraph and the Express.
Anyone who thinks that British courts have become a hotbed of anti-government ‘judicial activism’ should ponder two judgments given by the UK Supreme Court on 30 July. The cases of Re A and BF (Eritrea) limit the scope of judicial review of administrative decisions at least as much the government’s own proposals in legislation currently before Parliament.
The Judicial Review and Courts Bill, introduced in the House of Commons on 21 July, makes one significant change to judicial review. Judges will be able to suspend orders that strike down administrative actions and decisions. At present, these orders automatically take effect retrospectively, so that the action or decision struck down is deemed always to have been unlawful. In future, a suspended order will confer temporary validity on decisions that are unlawful, pending their correction. The power is not automatic: it can be only be used if it still gives ‘adequate redress’ to the person challenging the decision.
Whether this change gives judges more or less power is a matter for debate. At least it does not bear out the worst fears about the Johnson government’s apparent desire to take revenge on the ‘Enemies of the People’ for blocking its attempts to prorogue Parliament and to leave the EU without Parliament’s approval.
The Supreme Court, on the other hand, has turned one important aspect of judicial review back to the 1980s. The two cases concerned government policy guidance, and the extent to which the court can nullify it and decisions made under it. Policy guidance is intended to help decision-makers exercise the wide discretionary powers that statutes frequently confer on a host of public authorities and ministers. If policy-based decisions are made that fall outside what the law permits, the courts are liable to strike them down.
In the case of A, the issue was the lawfulness of a policy concerning when disclosure can be made about an adult who had committed sexual offences as a minor. In BF (Eritrea) it was the policy for assessing the age of unaccompanied asylum seekers who claim to be aged under eighteen: minors cannot be detained while the Home Office decides whether they are refugees.
In both cases, the Supreme Court held, in essence, that judges must not treat any unfairness (or the risk of it) which the policy creates as a reason for striking it down. A number of significant decisions have been made on this basis over the years. According to the Supreme Court, the determinative issue is only whether the policy gets the law wrong: a much narrower question.
Relying on a case decided in 1986, the judges in Re A ruled that a policy will be unlawful only if it misdirects officials as to their legal obligations, by mis-stating the law or failing to state it at all. Hence, the court in Re A found that the police were entitled under the relevant policy not to consult Abefore informing members of the public about his criminal record, even though the disclosure led to him being attacked.
In BF’s case, the same panel of Supreme Court justices restated their decision in Re A:the vagueness of the policy on how to assess his age, with the risk of unlawful detention if he was incorrectly found to be over eighteen, was insufficient to render it unlawful.
The Supreme Court’s approach can be seen as constitutional orthodoxy, a reassertion of the proposition that the court’s job is merely to ensure that the government acts within the law. But the law evolves, and the boundaries between judicial and executive territory shift – normally in the executive’s favour. These decisions mark a retreat for the judiciary and will give the executive more scope to advance policies that are immune from scrutiny.