5th August 2021
Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.
The piece is by the law professor and former adviser to house of lords committee Alexander Horne.
It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.
If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.
If so, this may be significant – at least in its effects.
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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.
This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.
This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.
Almost all the cases heard by the supreme court do not concern judicial review.
That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.
This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.
It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.
In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.
There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.
But those judges and lawyers will soon be in the minority.
And this effect will have a practical impact far greater than could be achieved by bill before parliament.
The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.
The supreme court seems to be signalling the retreat.
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Is it me or are there parallels with the BBC? If you make the right noises, people fall into line without any need for actual intervention.
Similarly, to central banks’ open-mouth vs open-market operations. In the case, of monetary policy it is socially advantageous. Alas, not here.
If not the law who then will hold government of any colour to account? The voters? Referendums? Every 4/5 years and with the current system, open to gaming?
Some further thoughts on the narrow, formalistic approach of the Supreme Court in the last couple of years, here: https://lrb.co.uk/the-paper/v44/n02/conor-gearty/in-the-shallow-end
Concluding: “In a case in 2014 the late Lord Toulson vehemently denied that the common law, the body of law created by judges, had become an ossuary, but the Reed court seems set to prove him wrong.” Ouch.