Professor Richard Ekins is Associate Professor of Law at the University of Oxford, and Head of Policy Exchange’s Judicial Power Project.
While all eyes have been on the formation of the new Government, some other important appointments have been made and are at risk of being overlooked.
From January through June next year, three new Justices will join the Supreme Court. Two are serving Lord Justices of Appeal; the third, unusually, is a distinguished academic lawyer (with considerable part-time judicial experience).
All three are men, and so with Lady Hale’s retirement on 10 January, the number of women on the Court will drop from three (of twelve) to two. Lord Reed has been appointed President of the Supreme Court and will replace Lady Hale in this important role, with effect from 11 January.
Lord Reed’s appointment is no surprise: he is an experienced and very able judge. He has served on the Supreme Court since February 2012 and as Deputy President since June 2018. Only three of the current Justices have served for longer, two of whom, Lady Hale and Lord Wilson, retire early next year. The third, Lord Kerr, will continue in office until February 2023 (retiring at age 75, which was the retirement age when he was first appointed a judge).
Lord Reed will remain in office until September 2026 (retiring at age 70, which is now the mandatory retirement age). He is thus likely to be the longest serving President the Supreme Court has yet had. This is a significant appointment.
It is also an excellent appointment. Lord Reed is a careful, impressive judge, keenly aware of his responsibility to do justice according to law and, conversely, to avoid the temptation to subvert law in an attempt to do justice. In a series of important judgments, Lord Reed has acted on a traditional understanding of the judicial function, recognising the limits of judicial power and hewing close to settled law, rather than taking himself to be free to remake it in the course of adjudication.
In Bank Mellat, the Supreme Court considered a challenge to the Treasury’s use of counter-terrorism powers to freeze the assets of an Iranian bank in order to hinder the pursuit of nuclear weapons by Iran. The majority, led by Lord Sumption, quashed the order as an irrational and disproportionate interference with the bank’s convention right to enjoyment of its possessions.
Lord Reed, in dissent, took a more restrained view of the Court’s competence, especially in this domain, to conclude that government action was irrational and disproportionate, and thus unlawful.
In Tigere, he joined Lord Sumption in a fierce dissent from the majority’s decision to go beyond Strasbourg – that is, to require more of UK authorities than the European Court of Human Rights would require – and effectively to introduce into UK law a novel right to taxpayer support for tertiary education for non-citizens. In Nicklinson, he strongly resisted those of his colleagues who were intent on cajoling Parliament to change the law on assisted suicide. (The next round of litigation is about to begin.)
And in June last year, he was, to his credit, in a minority of the Supreme Court that refused to depart from the case law of the European Court of Human Rights and to denounce Northern Ireland’s abortion law as incompatible with human rights law.
Lord Reed’s unwillingness to go beyond Strasbourg is a principled limitation on the authority of UK courts, a limitation which is required by the scheme of the Human Rights Act. It makes for a striking contrast with Lady Hale, who has always seemed willing to go beyond Strasbourg.
In Miller, the Article 50 litigation, Lord Reed was one of three of eleven judges in dissent. His dissenting judgment was masterful, navigating the questions of statutory interpretation and constitutional practice with painstaking care. Likewise, in the recent judgment of Privacy International, Lord Reed dissented from the majority’s misinterpretation, in my view, of the ouster clause protecting the jurisdiction of the Investigatory Powers Tribunal.
More importantly, he also rejected dicta by three judges – Lord Carnwath, Lady Hale and Lord Kerr – to the effect that parliamentary sovereignty is not fundamental and that in a future case it would be lawful for courts openly to defy Parliament and to quash a crystal clear ouster clause.
Lord Reed’s refusal to countenance judicial challenge to parliamentary sovereignty is good news. Less happily, in Evans v Attorney General, he joined Lord Neuberger’s judgment, misinterpreting the Freedom of Information Act 2000 and effectively quashing the ministerial override for which it made provision. Lord Reed seems to have wrongly taken the override to be an unconstitutional transgression on the jurisdiction of the courts. But even if this analysis had been sound, it would still have been wrong for the court to foist a clearly unintended meaning on the Act.
In another important case, UNISON, Lord Reed led a unanimous court in quashing the Lord Chancellor’s decision to raise tribunal fees. Lord Reed reasoned that the level at which the fees had been set limited access to justice and thus lay outside the power Parliament had conferred. This case has been widely hailed as a victory for the rule of law (contrast Evans).
But the problem, as Sir Stephen Laws has argued, is that the judgment is grounded on an implausible inference about Parliament’s intention and involves the courts in second-guessing policy choices, the merits of which should be for the minister, for which he or she is accountable to Parliament.
While I do not agree with all his judgments, and think in some types of case he may be more likely to go wrong, I welcome Lord Reed’s appointment as President of the Supreme Court, and admire his judicial record and philosophy. The future for the rule of law turns in part on how willing Justices of the Supreme Court – including the three incoming Justices – are to expand their jurisdiction, to challenge the authority of Parliament and to undercut the freedom that government otherwise has within legal bounds to make policy and to act for the common good.
Lord Reed’s appointment to succeed Lady Hale seems to me to be good news for the rule of law, reducing the risk that the Supreme Court will abuse its mighty jurisdiction.