UK Supreme Court – The Law and Policy Blog

A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties

22nd October 2024

Not all cases of constitutional import involve the high drama of cheering campaigners and disappointed ministers – or of cheering ministers and disappointed campaigners.

But the cases set out what is constitutionally proper and improper all the same.

Last Wednesday to relative media silence (other than in local media) the Supreme Court handed down its decision in a Northern Ireland case about appropriate legal action for a complainant to take so as to prevent harmful chemical gases and noxious smells escaping from a waste disposal site.

This is perhaps not the most glamorous set of facts for any legal case – and this is perhaps a pity, as the Supreme Court decision asserts a point of fundamental constitutional importance: about the ability of a person to access the courts for judicially reviewing public bodies not doing their regulatory job.

By way of background, there is an excuse which is deployed again and again by public bodies seeking to escape being taken to court for judicial review.

(In general terms, judicial review is the process by which a court will decide whether a public authority is correctly exercising its legal powers.)

The excuse is that the complainant has to “exhaust other remedies” as judicial review “is the remedy of last resort”.

In this case, the complainant Mrs McAleenon was told that she could not go to court to get public bodies to properly regulate what was going on at a waste disposal site.

On the face of it, the local council and the Northern Irish Environment Agency and the Northern Ireland department of Agriculture, Environment and Rural Affairs all had powers to do something about it:

But the complainant (and other local people) believed that these public bodies were not doing what they should be doing about the problem.

And it was a problem – this was certainly not a trivial issue:

One would think that this was a straightforward position: some local people had a problem, and there were public bodies who could and should do something about problem.

This would seem to be as basic a situation for modern public law and administration as one can conceive.

The public authority regulator should do its regulatory job.

But for Mrs McAleenon and her neighbours it was not a straightforward position.

When she threatened to take the public bodies to court so as to make them perform their public duties, she was told that she could not do this.

Instead, she was told that she had to do other, far more risky and expensive legal things first.

She was told by the public bodies, seriously, that judicial review should be not be available because she had “adequate alternative remedies”, in that she could herself launch a private prosecution against the owner of the waste disposal site, or could bring nuisance claim against the owner of the site.

Mrs McAleenon applied for judicial review anyway, and at first instance the court sided with her.

But then the public bodies appealed and the Northern Irish court of appeal went against her in a detailed judgment.

The appeal judges ruled that “there were two alternative remedies open to the appellant to provide her with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site. Each of these remedies, we find, offered her the opportunity of obtaining relief against the alleged wrongdoer”.

She should not be able to go to court against the regulator, the judges said, because her real complaint was against the site.

Mrs McAleenon applied to appeal to the Supreme Court, and she was given permission.

One issue in the case was that there were disputes over facts and contested evidence – and judicial reviews usually do not deal with factual disputes and contested evidence. Judicial reviews are normally about pure issues of law in respect of agreed facts. As such, cross-examination of witnesses and competing expert reports and so on are rare in judicial reviews.

This looks as if it may have influenced the appeal judges – as other legal procedures were more used to assessing evidence at trial.

But it is entirely open to a judicial review court to deal with factual and evidential conflicts.

The Supreme Court took the view that judicial review should not be refused just because there were factual and evidential conflicts.

But the Supreme Court went far further than this, and said – in effect – that for Mrs McAleenon the availability of criminal and private law procedures were not even alternative remedies in the first place.

In essence, when the complaint is against a public body as a regulator, it is irrelevant that the complainant may also have a remedy against a party that is not being properly regulated.

In two key paragraphs, the Supreme Court set out the public importance – and public benefits – of the complainants having access to judicial review against regulators:

The Supreme Court also made the point that access to an Ombudsman may not also be an adequate alternative legal remedy:

This dicta should please those who (correctly) are concerned about the general ineffectiveness of the Ombudsman system.

The Supreme Court remitted the case back to the Northern Irish court of appeal for it to be properly decided.

This is the press release from the successful appeal solicitors Phoenix Law, who should be congratulated for a great piece of appellate work on a crucial if unglamorous issue:

This case may have significant implications across regulatory law, both in respect of environmental issues and otherwise.

The decision strengthens the “public” element of public regulation.

Regulated entities already often have rights of appeal as well as access to judicial review. (And many regulated entities often seem to have “captured” their regulator and have established cosy relationships.)

But members of the public who are unhappy with how the regulator is performing its public duties are now in a stronger position.

No longer can such complainants be palmed-off and-waved away by the regulator with the message that they should just directly sue – or prosecute – the regulated entity bothering them.

No longer can they just be told that they should – at great expense and risk – first exhaust “alternative remedies” and not bother the regulator.

Complainants now have Supreme Court authority for being able to go to court to get regulating public authorities to do their jobs properly.

There is a great deal of discussion about whether the Supreme Court of the United Kingdom is small-c conservative or not.

But this case, perhaps together with the 2021 Majera case, show that when it comes to the province of judicial power, the Supreme Court will firmly assert and defend the proper role of the courts in our political system.

For not all cases of constitutional importance, limiting what the executive in its various forms can get away with doing and not doing, are glamorous actions about high politics.

Sometimes they are about other, more mundane noxious things.

***

Direct links (as Bailii links can be problematic on some apps):

Supreme Court decision: https://www.bailii.org/uk/cases/UKSC/2024/31.html

Northern Irish Court of Appeal decision:

https://www.bailii.org/nie/cases/NICA/2023/15.html

2021 Majera decision:

https://www.bailii.org/uk/cases/UKSC/2021/46.html

***

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Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court

1st October 2024

In the main courtroom of the Supreme Court there are the benches – really desks – where the Supreme Court judges sit, and at each place there is a microphone for each justice, with a button they can press when they want to speak.

But at the head of the bench, at the centrally placed desk, there are two buttons: one for the presiding justice to press when they want to speak, and one (I am told) which they can press to turn off all the other microphones in the courtroom – justices and advocates alike.

If you ever want to think about true judicial power, think of that second button.

I know this because I have had the privilege of judging moots in that seat and in that courtroom. It is a splendid space, adapted from the old (indeed, olde) magistrates’ court, and still with some of the old (olde) furnishings, with an imposing portrait of that famous eighteenth-century magistrate John Fielding. But it is also up-to-date, with discreet working electronic paraphernalia and – again showing true judicial power – working radiators.

You couldn’t want a more “common law since time immemorial” feel to a modern courtroom if you tried. The only fault is the garish carpet, which must be the worst-looking carpet in England, and perhaps even the worst in the world.

There are courtrooms over at the Royal Courts of Justice that are superficially more imposing – but they are really museum pieces, without working radiators and often without any working electronic paraphernalia.

Anybody with experience of the variety of English courtrooms, up and down the country, cannot but think that it would be a good thing if more courtrooms were up to the standard of those in the Supreme Court. It is a great space, but it is not a representative one.

When the Supreme Court was established fifteen years ago, it was a sensible decision to house it in a new building, and the choice of the old (olde) Middlesex Guildhall on the side of Parliament Square was inspired – historically, architecturally, and geographically.

From an Anglocentric perspective, it is as if the four elements of the ancient English state are on the four sides of the same public square: the Palace of Westminster (parliament), Whitehall (executive), Westminster Abbey (the established church), and now the Supreme Court.

Before then, the highest court was housed in a corridor somewhere in the Palace of Westminster, and was in form as well as in location the judicial committee of the House of Lords.

The notion was that the appeals that went to the House of Lords were heard by the judicial committee of that house. The committee could – and indeed was until the days of the Blair premiership – attended by the Lord Chancellor, a cabinet minister who was also entitled to sit in a judicial capacity.

As a system it sort-of-worked, even though it was conceptually untidy.

And so when the Blair government proposed a new supreme court to replace the judicial committee the opportunity was taken to assert the independence of the court with a new building. It also had its own budget and even it own website url (and not any gov.uk url). It even had its own remarkably impressive law library. And it is a lot easier to visit than the old judicial committee.

In terms of symbolism there could not have been a more emphatic (and welcome) break with the muddle-through of the old House of Lords regime.

But.

Changes of form are not always changes of substance.

In many ways the new Supreme Court does much the same work as the old House of Lords committee – with a high proportion of impossibly dull complex tax cases.

And it is often the same sort of judges – and at one point recently the twelve-judge court had four Davids. (And Davids really do not need such disproportionate representation.)

Yet there are a couple of interesting changes.

First, the court is taking its role seriously as a constitutional court. This is in part because part of the constitutional reforms fifteen years ago was that it would hear certain devolution-related applications in addition to its main workload. It is also because circumstances meant that it had to deal with controversial constitutional cases, such as the two Miller cases.

But it has not got carried away – as a sequence of cases shows the court has firmly refused to extend its role in respect of policy decisions. The court will not duck the big constitutional cases – but it certainly will not decide them in a way that would always please activist liberals.

And second, the court has done as much as it can to make its hearings and judgments accessible ot the public. Its website has a great deal of detail on each upcoming case – sometimes even including documents such as skeleton arguments, video footage is made available of hearings, and the judgments are handed down with useful summaries.

Over time, as generations of law students (and interested lay people) come and go, this accessibility will be a gradual boon to the public understanding of law. The effect will not be dramatic and immediate. But having ready access to such materials can only have a positive effect.

The court is not perfect – and there still needs to be fundamental reform of the parallel judicial committee of the Privy Council which also sits in the same building with the same judges.

But fifteen years on, it deserves a couple of cheers from those who take the separation of powers and judicial independence seriously.

And perhaps the court could mark the anniversary by, say, treating itself to a brand new carpet.

***

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Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024

One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21^st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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How the government is seeking to change the law on Rwanda so as to disregard the facts

30th January 2024

The decisions of judges, other than about case and court management, can be divided into two sorts.

First, there are rulings. These rulings can be about the substantive law, or they can be rulings on the admissibility of evidence, or they can be rulings on procedural technical points. In each instance, the judge will identify the rule, apply it to the situation before the court, and decide the outcome.

Add second, there are findings. These are determinations of fact which are required for the case before the court to be decided at a trial. These facts are, in turn, based on the evidence admitted before the court.

If there is no dispute, then a judge can make a finding of fact based on the undisputed evidence before the court; but if there is a dispute of fact then the judge has to weigh the conflicting evidence and make a finding.

The judge will then apply the rules to the facts found.

(In a criminal trial – and some civil trials – where there is a jury, it will usually be the jurors that will determine any disputes of fact and thereby any consequential legal liability.)

A reasoned judgment by a court deciding a case can include both types of decision; though in a straightforward case there is normally only a dispute of fact.

The key point for the purpose of this post is that rulings and findings are different.

Now let us go to the Supreme Court judgment on the Rwanda policy.

The court set out the statutory criteria for determining whether Rwanda is a safe third country (emphasis added):

“A country is a safe third country for a particular applicant, if:

“(i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;

“(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;

“(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and

“(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”

After a detailed examination of the evidence, ultimately the Supreme Court decided (again emphasis added):

“As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”

In other words the Supreme Court made a finding of fact based on the evidence placed before it. The evidence “established” a thing, and that thing in turn determined the case.

Let us now look at the government’s Rwanda Bill currently before the House of Lords on its passage through parliament.

Here is clause 2 (note a Bill has “clauses” as it passes through parliament, which then become “sections” when it becomes an Act):

You can see what the government is seeking to do.

Instead of it being a matter for a court to decide whether Rwanda is a safe third country, the Bill removes that discretion absolutely – regardless of any evidence. Indeed such evidence may not even be relevant with this deeming provision.

A court will not be able to make its own findings, it “must conclusively” decide Rwanda is safe – whatever the actual facts.

And now let us go to a speech in the House of Lords from the former Conservative Lord Chancellor Kenneth Clarke:

According to Hansard, Clarke said:

“[Ministers] have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country.

“If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.

“That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law.

“Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?

“As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country.

“The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.”

Yes, Clarke had at best a mixed record as Lord Chancellor – especially in respect of the severe funding cuts to legal aid.

But he is absolutely right to set out, with first principles, the fundamental danger this bill presents.

The government should leave findings of fact to the courts – and if the court’s findings are unwelcome, then ministers should work to change the facts.

Using the law to deem a country safe which the Supreme Court found to be unsafe after a detailed examination of the evidence, is an unwelcome move by this government.

And even a former Conservative Lord Chancellor can spot this.

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What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in

30th November 2023

This post is about three elements of the judgment of the Supreme Court on the Rwanda policy – and how the Supreme Court decision means that the Rwanda scheme cannot be saved by legislation and treaties alone.

These three parts indicate the difficulties for the government if they seek to use legislation so as to circumvent the judgment.

And two of these parts are about things which the Supreme Court did not decide.

The first of these is about, of course, the European Convention on Human Rights (ECHR).

Here it should be noted that the court had granted permission for the Convention to be raised as a ground of cross-appeal:

(The government appealed – as they lost at the Court of Appeal – but some of the asylum seekers cross-appealed on points on which they had lost.)

The Supreme Court dutifully set out the Convention point in two paragraphs of the judgment:

You will see, however, that even in these paragraphs the court is careful to set out the Convention position alongside other applicable laws.

The court then makes this point about other applicable laws explicit:

In essence, the court is stating that the ECHR point does not stand alone.

And then in paragraph 106, towards the end of the judgment, the court says (with emphasis added):

This means that even if the ECHR did not apply directly, and even if the Human Rights Act did not exist, then the court would have decided the case the same way anyway, because the key legal principle is in other other applicable law.

That key legal principle is non-refoulement – that is the legal rule that requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The court found on the evidence before it that there was such a risk if the asylum-seekers were removed to Rwanda.

It thereby follows that if the government were to bring forward legislation to limit the effect of the Convention in Rwanda removal cases it would not make any difference. The courts would just rely on other laws for the same point.

And this brings us to the second part, which is rather fascinating.

This is the thought-provoking – indeed, provocative – paragraph 25:

Now this is quite the passage.

So-called “customary international law” is, almost by defintion, outside the power of any one nation state to change. It will apply anyway. As the court says:

“the significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect.”

A nation state may break that law, but they cannot unilaterally change it.

In other words there is no legislation whatsoever the government can bring forward that will mean that this rule would not apply to the United Kingdom.

Deftly, the court ends this point with “as we have not been addressed on this matter, we do not rely on it in our reasoning”.

This suggests that if the Rwanda policy is re-litigated to the Supreme Court, even if the government somehow excludes all the applicable legal instruments (and not just the ECHR and Human Rights Act) then the court may well still hold that the policy is unlawful, on the basis of customary international law.

That is quite the marker.

The third part is about what the court did decide.

Here paragraph 105 is worth a very close look:

Here the court is stating that mere formal changes – such as placing the Rwanda policy on the basis of a treaty, as opposed to a flimsy MoU with no legal effect – will not, by themselves, render the policy lawful.

A treaty – which would provide for enforceable rights for individuals – would be necessary, but it would not be sufficient.

The real change required is that there be compelling evidence that, in practice, the Rwanda scheme will “produce accurate and fair decisions”.

And this is also outside of the scope of what the government can push through parliament: for no mere Act of Parliament can by itself change the situation on the ground in Rwanda.

Either the Rwanda scheme can be shown to produce the results required by the applicable laws – and, if need be, customary international law – or it cannot.

And if it cannot, it would seem that the Supreme Court will again hold the policy to be unlawful, whatever legislation is passed at Westminster.

This case now comes down to evidence, not law.

Without relying on the ECHR the Supreme Court has placed the government in a rather difficult situation if the Rwanda scheme is to continue.

It would seem that only actual improvements in practical policy can now save the scheme – not clever-clever “notwithstanding” legislation.

And for a Supreme Court that had developed a reputation for being deferent to the executive and legislature on “policy” matters, this is a remarkable position.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate. It would not have been relied upon had the government been actually serious about this policy.

I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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Hurrah for this latest move towards transparency of the UK Supreme Court

27th April 2023

The test for whether an appeal reaches the Supreme Court of the United Kingdom is that it raises “a point of law of general public importance”.

This means that, by defintion, the appeals are of wider interest than to the parties themselves.

It also means that it does not matter how interesting the facts of a particular case may be to judges or to the public, it will not get to the Supreme Court unless the outcome matters to others.

As such, all cases before the Supreme Court should be as transparent as possible.

But.

There is nominal transparency, and there is real transparency.

Being able to watch streamed proceedings, for example, is of little use if it is difficult – even impossible – to follow the submissions and lines of argument.

You may as well walk into the court from Parliament Square and try to work out what is going on at a hearing.

Real transparency comes from having access to the documents before the court – the skeleton arguments (setting out the legal argument), the statements of case (setting out the basis of the parties’ positions), and even the witness statements.

Only then do you have real transparency.

And so the latest news, as reported by Legal Futures, is welcome.

The Supreme Court is moving to putting documents online – subject to the usual (and usually understandable) exceptions for confidentiality in particular cases.

This would be a huge boon for the public understanding of law, and it will enable viewers to fully and constructively engage with what is going on.

A student – or a lay person – could sit with two screens – one watching the hearing, and the other toggling between documents, joyfully clicking onto hyperlinks to case reports and legislation.

There are few better ways than to grasp the nature of practical law and to understand how cases work.

There can be no argument in principle against this: for after all, these are cases which raise “a point of law of general public importance” – and these are documents referred to in open court.

There will be grumbles from some lawyers, who may not be willing to have their well crafted documents effectively become texts freely available in the public domain.

But that would be the cost of having a case before the Supreme Court – if you are litigating on “a point of law of general public importance” then it has to be on an open book basis.

And the general availability of such texts – which would otherwise often be stored in the exclusive precedent files of a small group of law firms and chambers – will promote best practice generally.

Lawyers at such law firms and chambers will be giving something back to the wider profession in a helpful and meaningful way.

Of course: pretty soon many people would get bored by the novelty of such access.

But in the longer term it generally would have a positive effect on legal study and professional development, as well as on the public understanding of law.

And, it must be admitted, it would be pretty great for legal bloggers too – and the readers of such blogs.

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