UK Constitutional Law Association

Nicholas Reed Langen: Is the Supreme Court more interventionist?

The global outpouring of grief upon the death of Justice Ruth Bader Ginsburg in September showed how complete her transfer from justice of the Supreme Court to international icon was.  Notorious enough to just be known by her initials, RBG was a judge celebrated in popular culture like no other.    Hollywood A-lister Felicity Jones portrayed her in the Hollywood biopic, On the Basis of Sex, the antihero Deadpool considered drafting her for the X-Force, a team of superhero mutants, in Deadpool 2, and even Lego got in on the act, creating  a mini-figure of her after the release of The Lego Movie 2.     

Given Britain’s obsession with – and imitation of – American culture, it was perhaps inevitable that we needed our own RBG. Enter Baroness Hale, the first woman to sit on the Supreme Court (and in the House of  Lords), and the President of the Court from 2017-2020.  Before this, Baroness Hale was already celebrated in the legal community, including starring in a children’s book about her life and ascent to the Court’s presidency, Equal to Everything, but it was the Cherry/Miller II judgment that catapulted her onto the national stage.  There, even the brooch pinned to her blouse excited debate, as to whether it was an allusion to the Greek myth where Arachne challenged Athena to a weaving contest, or a metaphor symbolising the complex web that linked the three branches of the state. (It wasn’t. It was just a brooch.) 

To some, this celebration of judges, particularly in the UK, where it is more novel, is an unnecessary and undesirable shift in the UK’s constitutional arrangements. According to such critics, the ‘developing public profile’ of some judges, alongside the reinvention of the House of Lords as the UK Supreme Court, has elevated the judiciary, giving them a new perspective on their role, and transforming them from deferential and reticent participants in the UK’s constitution to activist aggressors, reframing the constitution with them at its centre.

This is, at least in part, the argument of Professor Richard Ekins in a paper written for Policy Exchange last year after the Supreme Court’s prorogation decision.  In it, he argues for the abolition of the Supreme Court, and for it to be replaced by a less superlatively titled ‘Upper Court of Appeal’, a court that would be expressly instructed that it was not a constitutional court, nor ‘the guardian of the constitution’, and confined to ruling on matters of general legal interest, not the general public interest. 

Setting aside the obvious challenges that placing such limits on the courts would create, there is the questionable merit of Ekins’ argument that the nomenclature of the Court and its growing public profile has any bearing on the nature of its decisions.  While we can be subliminally influenced by all manner of things, it seems tenuous to claim that, had the House of Lords been in situ throughout the recent years of constitutional upheaval, the Law Lords would have been more likely to defer to the government’s arguments simply by virtue of adjudicating from within Parliament, rather than outwith across the square.

Assessing such a claim is challenging, given that it requires the evaluation of a negative. However, it is possible to set out a series of factors that enable a relatively objective comparison of the House of Lords and its decisions and the Supreme Court and its decisions.   First, the composition of the Supreme Court; second, the adherence of the Supreme Court to precedent; third, whether the Supreme Court has become more willing to make declarations of incompatibility; fourth, if the Supreme Court has used its s.3 HRA interpretation power more potently; and fifth, the presence of any exceptional circumstances faced by the Supreme Court that might have justified more novel developments of constitutional principle. 

First, in terms of the composition of the Supreme Court, little meaningful change took place when the law lords made their way across to the Middlesex Guildhall.  Apart from Lord Scott (who retired) and Lord Neuberger (who became Master of the Rolls, before joining the Supreme Court as President in 2012) all the Law Lords became justices of the Supreme Court, retaining their seniority.  Lord Phillips, as the Senior Law Lord, became President of the Court, and Lord Hope, as Second Senior Law Lord, became Vice President. Included among these transferring Law Lords were Lady Hale and Lord Kerr, two of the justices who can reasonably be said to have been the most ‘activist’ in their decision-making on the Supreme Court. It seems unlikely that they, or the other transferring justices who heard any of the cases discussed here, would have ruled differently from the environs of the House of Lords.

Nonetheless, assessing what the decisions of the retired Law Lords and Justices would have been in these cases discussed here clearly becomes guesswork.  However, Lord Phillips, at least, gives us some indication as to how he may have voted in Miller II, telling Prospect that the decision was ‘clearly right’ given the absence of any ‘positive justification’ from the government.  Even if Lord Phillips was also motivated by a need to support the Court at a time of trenchant government criticism, such fulsome language, with reasons, suggests that he was incentivised by more than mere collegiality.

Further, the justices appointed directly to the Supreme Court have not shown a greater tendency towards judicial ‘activism’ in their judgments.  To the contrary, the presence of justices like Lord Sumption and Lord Reed, with Sumption in particular having become one of the most prominent proponents of judicial minimalism, show there is a strong cohort of judges on the Court who tend towards deference.  Even if we assess the activism of the judges by how they voted in the first Miller case, it would suggest that those justices appointed directly to the Supreme Court were more deferential than those newly appointed. The three dissenters, Lords Reed, Carnwath and Hughes, all came to the Court after its inauguration, while the majority included four justices who previously sat as part of the House of Lords. 

If anything of substance has changed, it is the emphasis that the justices of the Supreme Court are fully separate from the political branches.  Not only is this obviously desirable for any democracy that recognises the separation of powers, but it was particularly valuable given the nature of the issues in the two Miller decisions.  In Jackson, where the Law Lords were asked to rule on the respective powers of the House of Lords and the House of Commons, there was concern that the Law Lords were judges in their own cause, as Baroness Hale discussed in a lecture delivered at the House of Lords in 2018.  Had the Law Lords not been divested from Parliament, the Miller cases would have resembled Jackson on steroids, with an already frenetic population riled even further by the thought that the Law Lords, as members of a legislative chamber believed to be hostile to Brexit, were pursuing their ideological ambitions over their judicial obligations. 

Secondly, in transferring to the Supreme Court, there has been no break in precedent. Past decisions of the House of Lords continue to be authoritative, and the Court has been careful, even in its most constitutionally novel judgments, to frame them with the familiar surroundings of past decisions.  In his article, Ekins references several decisions of the Supreme Court, apart from the two Millers, all of which he states or implies conflict with the ‘traditional, venerable understanding of the doctrine’ of parliamentary sovereignty.  These decisions, chronologically R(Cart) v Upper Tribunal, R (Evans) v Attorney General, R(UNISON) v Lord Chancellor, and R(Privacy International) v Investigatory Powers Tribunal all form part of the standard corpus of judicial review, rather than engaging questions of human rights. 

Space precludes detailed analysis of whether these decisions truly amount to ‘judicial interference in policy-formation, [and] effective government…’, but it is unrealistic to suggest that these decisions could not have been reached by ‘judges in past generations’.  Both Cart, which Ekins critiques as being ‘unjustified in principle’, and Privacy International concerned the validity of ouster clauses, with both decisions rooted in Anisminic’s long-extant precedent, which established that all legal errors are jurisdictional, and so open to review.  That the decisions perhaps go beyond what the judges in Anisminic may have anticipated is of little bearing, with the common law’s nature being to evolve incrementally and by analogy.  Equally, to argue that reviewing decisions of upper tribunals is ‘unjustified’ is curious, with Mark Elliott and Robert Thomas having noted elsewhere on this blog that the Franks Report on Tribunals, delivered in 1957, spoke of the need to ensure that tribunal decisions were subject to judicial oversight, and that Lord Denning supported such a conclusion in a contemporaneous judgment, saying that if the tribunals were free from ‘any check by the Courts, the rule of law would be at an end’.  Similarly, the more dramatic suggestion in Privacy International, that Parliament lacked the authority to fully oust judicial review, was not part of the majority judgment, but an obiter comment of only three of the seven justices that made up the majority.

Evans is a more complex decision to evaluate in terms of constitutional creativity, with the justices taking diverting paths in reaching their conclusions.  For this comment’s purposes, it was the constitutional path taken by Lord Neuberger that is the more relevant. His judgment rested on two ‘constitutional principles’ that are ‘fundamental components’ of the rule of law: first, that the decision of a court is binding, and second, that decisions of the executive are open to review by the courts.  While this further developed the idea of common law rights, giving more – and sharper – teeth to the court in protecting them, it would be ‘too simplistic’, as Alison Young wrote on this blog at the time, to see the decision as ‘yet another victory for common law constitutionalism’.  Lord Neuberger was careful to not claim that the rule of law always prevails over parliamentary sovereignty,  with the ultimate judgment against the Attorney General’s decision resting  on the contextual details of the case, and once more building upon judgments from the House of Lords, including M v Home Office and Jackson.

With even the most authoritative of recent judgments resting on clear and relatively longstanding precedent, it is not evident that the Supreme Court has been more activist or more authoritative in its checking of the government. While its decisions may have gone further than past precedent, they were not bereft of precedent, instead reflecting the need for the common law to adapt and respond to a modern executive that is delegated increasingly broad authority.  

Thirdly, this reticence is further shown through the conduct of the Supreme Court in the other area where a power-hungry court might seek to expand its domain- human rights.  In terms of declarations of incompatibility, the Supreme Court has been slightly more passive than its predecessor. Between the coming into effect of the HRA and the creation of the Supreme Court, the House of Lords made four declarations of incompatibility over nine years, while the Supreme Court has, to date, made three declarations over eleven, including in Steinfeld & Keidan, on the relatively uncontroversial issue of same sex civil partnerships (a declaration that has since been remedied by Parliament).  Further to this, the Supreme Court has recognised that some issues, like the right to die in Nicklinson, are for the legislature to decide, as well as resiling from issuing declarations in circumstances where some thought them appropriate.  For instance, they preferred to acknowledge a role for the legislature in the prisoner voting saga by not issuing a further declaration in R(Chester) v Secretary of State for Justice, and similarly decided against a declaration over the issue of abortion in Northern Ireland, with a majority adopting what was, to many, an overly technical interpretation of standing in order to side-step any obligation to do so. 

While many factors may explain this diminution in declarations of incompatibility, for a court that is supposedly growing in confidence it is curious to see a reduction in the frequency of declarations, and an obvious effort to avoid making a declaration in two controversial issues where the legislation was clearly incompatible.  Despite being a discretionary remedy, declarations have significant force, with all but the prisoner voting case having been substantively remedied (and with that case having been ostensibly remedied through executive order). Were the Supreme Court minded to enhance its authority, the media attention that comes after such declarations would be an effective way of doing so, with the attention emphasising the Court’s legislatively granted role as the final arbiter on human rights. 

Admittedly, s.4 is not the only instrument available in the HRA’s toolbox, with s.3, the interpretative power, arguably the more potent and frequently used remedy.  Given that this enables the courts to offer a meaningful solution to the violation at hand, it is hardly surprising that they would prefer this route.  Much as with the above, the question here is not if the use of s.3 has seen the courts usurp the legislative role, but if the Supreme Court’s use of the power has shifted since 2010. Once more, it would seem that it has not.  The touchstone case for interpretation is still Ghaidan v Godin-Mendoza, where the House of Lords ruled that semantics and legislative intent were not absolute limits when interpreting the statute. This interpretive approach has also begun to bleed into the common law, with Lord Reed writing in Osborn v Parole Board that the ‘protection of human rights is not a distinct area of law…but permeates our legal system’.  Although this was a relatively novel enforcement of common law rights, the potential for such an infusion was recognised pre-Supreme Court, with Lord Cooke observing in R(Daly) v Secretary of State for the Home Dept that ‘some rights are inherent and fundamental’. 

Similarly, the current approach to statutory interpretation under the common law is based in long-standing precedent, with Ridge v Baldwin, Padfield, and Anisminic reinvigorating English public law, and doing so independently of any impetus from the CJEU, the ECHR or the HRA.  Instead, as Lord Justice Sales (as he then was) said, the current position can be seen ‘as part of a continuous development in line with…the domestic approach…’.

Despite all of this, it is true that the Supreme Court has become a more visible and constitutionally engaged body, but this is something that should be celebrated, not bemoaned. The judiciary are a core part of our constitutional arrangements, and the fact that the judgments are broadcast online, that the public are aware of at least some of the justices, and that the Supreme Court is open to visitors should be celebrated as increasing public understanding of our constitutional system.  The move to a separate building did much to enhance this accessibility, but it would be remiss to not acknowledge that much of the Court’s increased profile has come as a result of the cases that have come before it and the decisions that it has made.  But these high-profile cases, Miller I and Cherry/Miller II foremost among them, do not show the court overreaching, as Ekins would have it, but an executive that is overreaching, encroaching on the terrain of Parliament.

Little exemplifies this unwarranted encroachment more than the second Miller decision, which, had the Supreme Court not unanimously ruled to strike down the prorogation, would have dramatically enhanced the powers of the executive over Parliament.  Should the Supreme Court have failed to act here, as Paul Craig wrote before the judgment, it would have been its inaction that ‘diminishes parliamentary sovereignty as a foundational principle, and transforms the UK constitutional order such that the cards become stacked in the executive’s favour’.  Once more, this is not because the Supreme Court has ‘mistake[n] its position in relation to the Houses of Parliament’, by virtue of no longer being ‘before her Majesty the Queen in her Court of Parliament’, but because it has been asked to review the decisions of an executive that appears to believe that its authority over Parliament is absolute.

While Ekins may be right to argue that ‘the scope of judicial review has been sharply extended’ over the last thirty years, many of these decisions have been focused on ensuring that the executive does not overreach, and that when it is delegated powers by Parliament, it remains within their four corners.  The cases set out here primarily check the executive, not Parliament, and do so in a manner that is consistent with the decisions of the House of Lords.  Moreover, it is not unreasonable to argue that in the one area where the courts do have enhanced authority over Parliament, human rights, the recent line of decisions by the Supreme Court suggests a more deferential court, not a more activist one. To suggest that the name of the court or the fame of the justices is a key driver in the recent, high-profile decisions of the Court is to confuse correlation with causation. 

It is not inconceivable that by now more closely resembling the constitutional and supreme courts of other jurisdictions, whether Germany or the United States, the UK Supreme Court feels more confident in its constitutional role. At the same time, it is difficult to see a House of Lords presided over by Lords Bingham, Phillips, or any other past Senior Law Lord reaching different conclusions in any of the major constitutional cases discussed here.

My thanks to Alison Young, Mike Gordon, Liam Wells & Anna Kotova for their comments on drafts of this post. Any errors, of course, are mine alone.

Nicholas Reed Langen edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap

(Suggested citation: N. Reed Langen, ‘Is the Supreme Court more interventionist?’, U.K. Const. L. Blog (14th Oct. 2020) (available at https://ukconstitutionallaw.org/))