Tim Sayer: Preserving Judicial Oversight: An Appeal to Self-Interest

Boris Johnson’s government takes the view that ours is a time of judicial overreach, necessitating redress in terms of the balance of judicial and executive power. This seems to have been driven by a number of high-profile cases, certain vocal thinktanks which appear to have the ear of government, and a wider constitutional prospectus of enhancing executive power to the detriment of the other branches of state. An endless series of projects and proposals have emerged, designed to remedy the perception of an overmighty judiciary. The Independent Review of Administrative Law, established with a view to curbing the perceived excesses of judicial review, reported recently in relatively tame terms, only to be swiftly followed by a further set of proposals. The Independent Human Rights Act Review potentially paves the way for satiation of long-held Conservative fantasies of amending the Human Rights Act. There are also, if leaks are to be believed, proposals to reform the UK Supreme Court.

These proposals have been thoroughly critiqued, both in terms of the robustness of the evidence suggesting any judicial overreach, but also the constitutional and normative desirability of reducing people’s ability to hold the executive to account for unlawful actions. Lest, however, the government fails to be persuaded by evidence debunking myths of judicial overreach, or constitutional arguments (which one suspects have limited traction in ideologically fraught times), I propose here an additional argument against imposing substantive restraints on the judiciary: self-interest. To be absolutely clear, I am not talking in principled terms about the potential for judicial review to inculcate effective governance. Rather, I appeal to baser executive motives of achieving governmental policy objectives, directly or indirectly, via judicial review. This is not to undermine the seriousness of the issues. But on the basis of recent comments from the Prime Minister, it appears that an appeal to self-interest might be more effective than any number of erudite, evidentially robust submissions. There are at least three ways in which the possibility of judicial review affords the executive a strategic avenue for getting its way which would not otherwise be available. 

Strategic interventions

Interveners in public law cases have been a source of government ire in recent times. But there are frequent examples of governmental interventions through which, indirectly, the executive has been able to achieve policy outcomes outside of the usual channels. For example, in Yemshaw v London Borough of Hounslow, the Department for Communities and Local Government intervened in a case concerning the definition of ‘violence’ in the Housing Act 1996. It is rarely possible to know which factors materially influenced a court, but we may note that the Supreme Court agreed with the government’s reading of the Act (Lady Hale referenced intervening counsel’s submissions at paragraph 33 of her lead judgment). If the government’s reading of the Act had not been accepted, the only available route to achieve the same outcome would be amendment of primary legislation. Bearing in mind the endemic overcrowding of the Parliamentary timetable, and competition with other potential bills, a strategic intervention was much the easier route. Less predictable, of course, and dependant on a relevant case arising, but with the added benefit (depending on the context) of reduced political visibility. Yemshaw was not a one-off – even if we look only at Supreme Court cases there are a number of additional examples (see e.g. Nzolameso v City of Westminster).

Governmental use of constitutional review mechanisms

A related but discrete issue is that of the government using mechanisms designed to protect rights, or to otherwise contain the institutions of state within their areas of legal competence – essentially, the paraphernalia of constitutional checks and balances. A pertinent example is section 3 of the Human Rights Act. Section 3, the requirement that the courts interpret legislation so far as possible compatibly with the rights protected in the Human Rights Act, is one of the measures currently targeted for review. Presumably, this is because of the indirect threat posed to Parliamentary sovereignty by creative, purposive judicial interpretations. As an excellent recent piece on this blog notes, the use of section 3 by the courts has been rather less radical than its critics assume. Yet central government itself has periodically urged courts to use section 3 to adopt creative readings of statutory provisions (see e.g. Secretary of State for the Home Department v AF, in which all parties urged the House of Lords to adopt reading under section 3 rather than making a declaration of incompatibility – further examples are referenced in this excellent piece from the Public Law Project). There are numerous other examples of central government functionalising constitutional control mechanisms. The provisions in the devolution statutes allowing ministers to refer to the Supreme Court draft legislation before one of the devolved legislatures provide one such mechanism. It is notable then, that at the same moment the UK Government pursues reform of supposed judicial overreach, it has referred two bills of the Scottish Parliament to the Supreme Court for consideration under section 33 of the Scotland Act 1998. And, of course, the government periodically makes use of, or threats of, direct litigation to further its ends. The Secretary of State for Education’s recent behaviour in respect of Greenwich Council is a notable example. And on occasion central government itself has made use of the possibilities afforded by judicial review to pursue or protect its policy aims. A classic from the annals of judicial review is Secretary of State for Education v Tameside MBC, in which the Secretary of State sought (unsuccessfully, ultimately) an order of mandamus to require Tameside Council to implement plans to switch from grammar to state schools.

Maintaining a useful antagonist

The third reason which the Government may wish to consider carefully before legislating further to clip judicial wings is that the judiciary can be a useful ‘enemy’ (for want of a better term). There are two interrelated aspects to this: one legal, one political. On the legal side, it is occasionally helpful for a government to lose in court and, in effect, be told it has to abandon a policy. This enables government to be seen to want to achieve some or other radical aim but to be thwarted by those sticklers for legality sitting in the High Court, rather than having to publicly admit that it was irresponsible in governance terms to pursue the aim in the first place (for an interesting discussion of this see a recent piece from the Institute for Government). The more nakedly political version of this argument is that, in times of public scepticism relating to experts and elites more generally, governments may find there is currency in having a set of well-educated, well-heeled and polite (at least in public) judges upon which it can occasionally vent its ire. An unedifying example of this was the ‘enemies of the people’ saga, wherein the Lord Chancellor was notably tardy and mealy-mouthed in defence of the judiciary. Without wishing to impute bad faith on the government’s part, the net result was that (for a time) the difficulties of the Brexit process were blamed on actors from the legal, rather than the political, constitution. The Government may find the possibility of blaming the courts for having to do certain things, or failing to achieve others, even more valuable in light of the UK’s departure from the EU and the absence of that perennial scapegoat.

The argument here is not to undermine the strong constitutional rationale for effective judicial oversight, or to deny that judicial review can make for better policy making. On the other hand, I do not deny the risks that judicial review can adversely impact upon effective policy making. Rather, the key point is this: everyone, government included, can potentially benefit from effective judicial enforcement of the rule of law, and proposals for reform need to consider this extremely careful. If the only way for central government to see this is through the prism of self-interest, so be it. 

My thanks to Alison Young and Michael Gordon for helpful comments on an earlier version of this piece. Any errors remain mine.

Dr Tim Sayer is a tutor at the University of Law

(Suggested citation: T. Sayer, ‘Preserving Judicial Oversight: An Appeal to Self-Interest’, U.K. Const. L. Blog (21st April 2021) (available at https://ukconstitutionallaw.org/))