It is not surprising or new that the executive plays institutional chess with the courts. Judicial review, though concerned with legality, is functionally concerned with the control of governmental power and any review exercise by the courts–no matter how legitimate–is likely to be felt by officials as impacting upon their domain from time to time. If a system of judicial review did not make officials feel this way at least on occasion, it would not be a worthwhile system at all.
Carol Harlow and Richard Rawlings have written on these dynamics for decades (see their 2016 chapter here). They have documented in rich detail the practices of executives–of different political stripes–“striking back” and “clamping down” on judicial review. They define “striking back” as:
[O]fficial responses to court rulings that are deliberately negative in the sense that government or administration sets out to rid itself of a judicial decision that it finds inconvenient or otherwise dislikes…Striking back is essentially a backward-looking or ‘fire-fighting’ activity designed to remove or minimise the effects of a specific decision.
This idea builds on the earlier work of Guy Braibant (‘Remarques sur l’efficacité des annulations pour excès de pouvoir’  EDCE 53). In 1961, he set out three actions public bodies could take to avoid following unwelcome judgments: using delaying tactics, involving appeals, judicial delays, and jurisdictional complexities; retaking annulled decisions by proper procedures; or resorting to validatory legislation. Harlow also suggested a fourth possibility in 1976: that government could simply disobey a judgment. “Clamping down,” according to Harlow and Rawlings, involves government “taking steps to protect itself against the threat of future judicial ‘interference’ by changing the rules of the game in restrictive fashion.” Examples they provide include changes to how judicial reviews are funded.
While these executive practices are not new, they are controversial. It also appears that the current–now outgoing–government has engaged in them–or at least talked about them–with an unusually high level of enthusiasm. For instance, section 2 of the Judicial Review and Courts Act 2022 is, in effect, a strike back against the Supreme Court’s decision in R (Cart) v Upper Tribunal  UKSC 28. There are now advanced proposals to change the costs rules in immigration judicial reviews, which, in effect, would amount to a clamp down on that type of case (for a full analysis, see here). There has also been consistent talk of a new mechanism that would allow ministers to overturn court judgments more quickly (see, for instance, the Lord Chancellor’s interview with The Telegraph in October 2021, and this helpful analysis of the proposal). While there has been an uptick in the prevalence of striking back and clamping down, there also seems to be a third species of executive response to judicial review that has emerged: what we call “entrapment.”
Executive “entrapment” of judicial review becomes possible when political actors within government realise there is political advantage to be gained by routinely being critical of the judicial review system, including the courts, the lawyers representing claimants, and the claimants themselves. In such political conditions, government consciously then makes decisions or adopts controversial policies at serious risk of being found to be unlawful, which provoke legal challenge. The inevitable judicial review challenge, from the government’s perspective, then creates a “win-win” scenario: it either wins in court, overcoming “meddling” courts, and being given licence to implement its “bold” policy; or the government loses in court and does not get to implement its policy but secures popular political advantage through vocal complaining about courts and lawyers “blocking” a government that is trying to implement “bold” policies. Complaining can then, in turn, lay the groundwork for further striking back and clamping down. All of this is, of course, entirely possible within a constitutional system where the government is both the chief repeat player litigant within, and chief designer of, the judicial review system.
While there might be multiple examples of this type of “entrapment” of judicial review, the government’s controversial policy to send asylum seekers to Rwanda is a paradigm example of this emerging practice. This policy forms part of the current government’s attempt to reform the asylum system without actually reforming the asylum system. The main asylum system is under-resourced and facing severe administrative problems (for an excellent analysis, see here), so the government is effectively diverting people away from using it through two tactics. First, if the government wants to proactively help certain people caught in certain circumstances, it creates “bespoke humanitarian pathways”, where people are essentially given visas instead of refugee status. This was, for instance, the case with people fleeing the war in Ukraine (for a full analysis of the administrative problems in this system, see here). The second is the “Migration and Economic Development Partnership” between the UK and Rwanda. Under this agreement, the UK is able to send asylum seekers who arrive in the UK to Rwanda, where they can make an asylum claim to stay there. The central policy objectives of this mechanism are stated to be deterring people from entering the UK in the first place, thus allowing the government to tackle traffickers who are facilitating people crossing the channel by small boat. In exchange, the UK is paying the Rwandan government an unspecified amount of money per individual sent to Rwanda, £120M across five years as part of an integration package, and has also pledged to resettle an unspecified number of vulnerable refugees, currently in Rwanda, in the UK.
The ‘Rwanda policy,’ as it has become known, is highly controversial. There are credible doubts that the deal is an economically viable or effective solution to the ongoing problems with the asylum system. There is a lack of evidence supporting the claims made by the Home Office that the plan will work as an effective deterrent. There are also obvious ethical objections to sending people who are likely to be highly vulnerable to another country, as well as concerns regarding the legality of the policy and Rwanda’s status as a safe third country. Despite these such concerns, the Home Secretary issued a ministerial direction to proceed with the policy. When the Rwanda policy was announced, the government explicitly stated they expected it to be challenged and sent out clear messaging. The Prime Minister Boris Johnson stated that:
[W]e expect this will be challenged in the courts, and if this country is seen as a soft touch for illegal migration by some of our partners, it is precisely because we have such a formidable army of politically motivated lawyers who for years who [sic] have made it their business to thwart removals and frustrate the Government.
The Home Secretary echoed this with a promise that the Home Office expected and was ready for legal challenges and was confident that any claims would be successfully contested.
The policy was then, as the government fully expected, judicially reviewed as individuals sought to resist their removal to Rwanda. Legal action was brought by the Public and Commercial Services Union and charities such as Asylum Aid. These cases escalated to the UK Supreme Court and the European Court of Human Rights as parties sought interim measures when the government planned to send the first cohort of asylum seekers to Rwanda. Ultimately, a last-minute European Court of Human Rights intervention saw an interim injunction granted as the Court ruled the appellant faced a real risk of irreversible harm if removed before a final domestic decision on the legality of the policy was reached (though most people were already off the plane by virtue of domestic court interventions or Home Office concessions). Full hearings on the legality of the Rwanda policy are now expected to be heard in September.
All of this litigation was headline news, and there was live 24 hour news coverage at airports as the courts rapidly heard claims before the planned first flight was set to take off. A communications opportunity for the government thus opened up, and it took full advantage. Speaking in the Commons, Home Secretary Priti Patel said the ECtHR ruling was “disappointing and surprising, given the repeated and considered decisions made in domestic courts.” Prime Minister Boris Johnson told a Cabinet meeting that the Government’s partnership with Rwanda was under a huge amount of attack, “not least from lawyers,” who he claimed were “undermining everything we are trying to do.” The strength of the backlash was such that The Law Society and Bar Council responded to the widespread criticism of the lawyers involved.
The executive “entrapment” strategy also paved the way for an act of both “striking back” and “clamping down.” In particular, given the impact of the interim measures from the European Court of Human Rights–halting the first flight to Rwanda minutes before it was due to depart–there appears to have been a specific backlash against that mechanism. Shortly after the interim litigation, the Bill of Rights Bill, which aims to replace the Human Rights Act, was published. Clause 24(3) states that “[t]he court may not have regard to any interim measure issued by the European Court of Human Rights.” Whilst the Bill was expected before the Rwanda litigation, a senior government source admitted that “[s]ome of the problems or the challenges we’ve had (with respect to Rwanda) reinforced and strengthened the case for what we’re doing.” While this looks more like old-fashioned clamping down and striking back on the surface, there is a distinction to be found in the fact it was in response to litigation that was clearly envisaged–if not provoked–by the government who were also attempting to accumulate political advantage when experiencing judicial resistance.
Executive reaction to judicial review all sits on a line that is at once fine but blurry: the boundary between legitimate executive engagement with judicial review and inappropriate tampering with an independent judicial process. As regards “entrapment” specifically, some may argue that judicial review claimants are perhaps a little too trigger-happy on certain issues these days and internal government legal advice may be too risk-averse (see this analysis by the Institute for Government), so ministers sometimes need to press on with a policy in the knowledge it is likely to be challenged. They, of course, have a right to do so. Yet, for the government to relish that challenge and the political opportunities it can bring presents a range of troubling problems. For claimants and their lawyers, they have to bring the challenge knowing even a clear legal victory could have significant adverse wider consequences for themselves, the community who share their interests, and the public law system as a whole. The courts then have to make decisions in a difficult environment, usually under the gaze of intense public and political attention. Whatever view one takes on the legitimacy of executive action of this kind in particular instances, this is certainly a development which demands vigilance. It is also a reminder—if one was needed—that government is also capable of using the judicial review system strategically and can itself struggle with the boundary between public law and popular justice.
Joe Tomlinson is Professor of Public Law at the University of York
Naoise Coakley is a Research Assistant at the University of York
Roisin Gambroudes is a Research Assistant at the University of York
(Suggested citation: J. Tomlinson, N. Coakley and R. Gambroudes, ‘It’s a trap! The changing dynamics of executive engagement with judicial review’, U.K. Const. L. Blog (28th July 2022) (available at https://ukconstitutionallaw.org/))