It is difficult to deny evidence of a potential backlash against the judiciary in the UK. Both Miller decisions sent shockwaves through the United Kingdom. This is despite both decisions having the effect of protecting the powers of Parliament rather than the courts, and both having a marginal, if any, impact on the ability of the UK government to achieve its desired Brexit outcome. It is hard to forget the ‘Enemies of the People’ headline following the first Miller decision. The Prime Minister’s reaction to the second Miller decision may be less well-known, but equally hard to forget. His statement to the House in response to the judgment focused on asserting that those bringing the legal action were only concerned to prevent Brexit – denying the will of the people. He made it clear that, though he ‘respected’ the decision of the Supreme Court that the promulgation of Parliament in September 2019 was unlawful, it was also wrong. It was also wrong for the court to ‘pronounce on what is essentially a political question, at a time of great national controversy’. In one of his last contributions to the Commons as Prime Minister – speaking in favour of the confidence motion in his Government – Boris Johnson boasted that his government ‘saw off Brenda Hale’.
The backlash, however, did not stop with these immediate responses. The Conservative Party manifesto promised to reform judicial review and the Human Rights Act 1998. The reforms aim to ‘ensure that there is a proper balance between the rights of individuals, our national security and effective government’ and to ‘ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays’ (p.48).
The current parliamentary session has seen some of these reforms come to fruition. The Dissolution and Calling of Parliament Act 2022 overturned the Fixed-term Parliaments Act 2011. It replaced a five year fixed-term Parliament with a maximum five year term, ‘reviving’ the prerogative power of the Prime Minister to request the dissolution of Parliament and the calling of a general election. Under the 2011 Act, an early general election could only take place after a vote in the House of Commons – either a vote of two-thirds of MPs in favour of an early general election or following a vote of no confidence, with no vote of confidence in a Government within 14 days. The Act removes this requirement for a parliamentary vote. It also contains a ‘non-justiciability’ clause. Courts cannot review the existence, extent, or exercise of the ‘revived’ prerogative power of dissolution.
The Independent Review of Administrative Law and the Independent Human Rights Act Review provided detailed assessments of judicial review and the Human Rights Act 1998, based on a wide range of submissions from academics, interest groups, and government departments. The government responded to both reviews by issuing further consultation exercises, raising questions as to whether their conclusions went far enough and asking for comments on more radical reforms. In the end, the Judicial Review and Courts Act 2022 did not go as far as some had feared, although it does contain a partial ouster clause, removing Cart judicial reviews (reviews of decisions of the Upper Tribunal to refuse to grant an appeal from a decision of a Lower-tier Tribunal), and restricting judicial review in this situation to cases where the tribunal was incorrectly composed, or where there was an invalid application, or where a decision was made in bad faith or contained a fundamental breach of the provisions of natural justice.
The government’s original response to the reviews on human rights was the Bill of Rights Bill 2022. Its provisions were widely criticised. The Bill would have reduced the role of courts in the protection of rights, as well as enabling the UK to diverge from decisions of the European Court of Human Rights. It also responded to independent consultation exercises by concluding that, even if most of the evidence was to the contrary, nevertheless the Government would pursue its policy objectives. The change of Prime Minister to Liz Truss, and the ensuing cabinet reshuffle, means that the Bill has now been shelved. It is hard to predict what, if anything, may replace it.
Faced with this situation, how, if at all, have the courts ‘pushed back’? For the most part, courts have continued to be deferential. This is particularly true of recent human rights cases, cases looking at statutory interpretation more generally, and cases concerned with the principle of legality. This is combined with a strong protection of the constitutional foundations of the UK constitution, specifically to ensure parliamentary sovereignty, as in the Miller decisions, and access to a strong independent judiciary capable of upholding the rule of law.
UK courts use deference to modify the stringency with which they review administrative decisions, and when determining the scope of Convention rights for the purposes of the application of the Human Rights Act 1998. Recent decisions suggest that deference is playing a potentially more important role in the UK supreme court.
2021 saw human rights decisions that appeared to provide a weaker protection of human rights. Begum concerned the application of Shamima Begum, who had been stripped of her UK citizenship on national security grounds, to be granted leave to enter the UK to appeal the decision to remove her UK citizenship. The Court of Appeal had granted leave to enter. The Supreme Court criticised this decision, concluding instead that the best course of action was to stay the citizenship appeal. In SC, the Supreme Court concluded that the change in child tax credits, which imposed a 2-child cap, did not breach Convention rights. Although recognising that the deferential ‘manifestly without reasonable foundation’ test may not automatically apply when determining proportionality in all socio-economic decisions, it being possible for the test to be applied more stringently when dealing with certain types of discrimination, nevertheless it did apply to a distinction between children in households with more than 2 children and those in households with only 1 or 2 children. In Elan-Cane, there was a challenge to the lack of a provision in UK passports to include X as a possible gender to recognise that individuals also identify as non-gendered. Again, the Supreme Court did not think that this amounted to a breach of Convention rights.
There is insufficient evidence to conclude that that courts are deliberately being cautious in human rights decisions in a time of backlash. All three cases are controversial. Courts have long been deferential in cases concerning national security and in areas concerning socio-economic rights. There is also no clear and established case law in the Strasbourg court, and no strong pan-european consensus, on the need to recognise the rights of non-gendered individuals in passports or other identification documents. However, there are further characteristics of this trio of decisions that illustrate a more cautious, legalistic approach.
The judgment in Begum is careful to point out the intertwining grounds of appeal, and focuses more on the flaws in the legal reasoning of the Court of Appeal than a broader approach to the importance of human rights. In SC, the court also had to consider the extent to which the UN Convention on the Rights to the Child – an unincorporated Treaty – was relevant to an assessment of any discrimination against children when applying articles 8 and 14 ECHR. The judgment was more cautious than earlier decisions that had considered this issue, relying on a more traditional assessment of the role of international law in a dualist nation. In Elan-Cane, the court disapproved of an obiter dictum in Re G that, within the margin of appreciation, it was for the UK to decide how far to protect rights, with the suggestion that this meant the courts could provide a stronger protection of Convention rights than would be found in decisions of the Strasbourg court. The Supreme Court in Elan-Cane adopted a more cautious approach to the words ‘take into account’ found in section 2 of the Human Rights Act 1998.
This legalistic caution is also clear in other important constitutional cases. There is evidence of a clear focus of setting out the court’s approach to the interpretation of legislation. This approach stresses that courts focus on determining the intention of Parliament, as set out in the wording of legislation, understood in the context of the aims and purpose of the legislation. In R (Fylde Coast Farms) v Fylde Borough Council, this approach led to the enforcement of a strict time limit for the bringing of appeals in planning decisions. It was not possible to avoid this strict time limit by challenging an earlier decision at a later stage in the process, when the time limit for the earlier stage had expired but the time limit for challenges to a decision made later in the same process, had not. This approach to statutory interpretation has been repeated in further Supreme Court cases, e.g. O/Project for the Registration of Children as British Citizens) and R v Luckhurst. In Reference re the UNCRC (Incorporation)(Scotland) Bill the Supreme Court stuck closely to its earlier definition of when an Act of the Scottish Parliament would modify or alter the ability of the Westminster Parliament to enact legislation for Scotland. However, this decision was not without criticism.
UK courts have taken a strong line when it comes to the protection of fundamental constitutional principles and access to the courts. Dicta to the effect that courts may not give effect to legislation in exceptional circumstances, such as the removal of judicial review or, potentially, the right to vote, remain unchallenged. As Privacy International illustrates, courts continue to take a restrictive view of ouster clauses. The dicta of Lord Carnwath suggests that, when it comes to judicial review of decisions of bodies with legally limited powers, it would not be possible for Parliament to remove judicial review for abuse or excess of jurisdiction, or for an error of law. The principle of legality can still be used to read down general legislation which restricts fundamental common law rights, and to ensure that any specific restriction on such a right is necessary. However, as the recent decision of the Supreme Court in O/Project for the Registration of Children as British Citizens makes clear, the principle of legality only applies when there is a breach of a fundamental common law right. O confirmed that UNISON remains good law, but that its approach only applies to court and tribunal fees which are set at such a high rate as to make it practically impossible to access the courts. It did not extend to provisions setting high fees for the application to register as a British citizen. The latter did not concern the fundamental common law right of access to the courts.
UK courts may be prepared to ‘push back’ in exceptional circumstances. This ensures a good long-term constitutional backstop in the face of a potentially abusive populist government. However, it may be harder for UK courts to prevent a gradual erosion of constitutional principles by express words in legislation, or an erosion of fundamental rights that are not protected by the common law.
The UK has seen a recent period of constitutional upheaval – some would argue a series of constitutional crises – following the Brexit referendum, the constitutional changes to establish a post-Brexit constitution, and the response to the coronavirus pandemic. It is perhaps difficult, therefore, to draw any long-term conclusions from recent case law. Any subtle change may have more to do with the specific issues appearing before the court than a change in judicial attitudes. It may also be connected to the personalities of those in power. A change in Lord Chancellors had a huge influence on the content of the proposed Bill of Rights, for example. We await to see whether a change in Prime Minister and Monarch has a similar impact.
A recent survey concluded that people wanted to see honest politicians with integrity, and did not want to see power concentrated in the hands of a few politicians. Moreover, the survey showed more support for judicial interventions than one would suppose from reading the media or listening to governmental statements. This would tend to suggest that, in the UK at least, public confidence in the judicial system, and a distrust of politicians who lack integrity, may well provide the most effective long-term coping strategy.