Are the courts reverting to type? Until quite recently, it was widely assumed that the last people to look to for protection from the state were the judges. The Irish knew this, so too did union officials, leftwing campaigners and civil libertarian activists. Progress on racial and gender equality was achieved despite judges, not because of them.
Then along came the 1998 Human Rights Act and the flourishing of a new generation of abrasively liberal judges, men and women not afraid to impose their will on the executive where the law demanded it, undaunted by “enemy of the people” jibes. The Human Rights Act survives in law, it is true – but what of its spirit?
In the latest case involving Shamima Begum’s effort to have the decision to deprive her of her citizenship overturned, the Special Immigration Appeals Commission (chaired by a judge, Mr Justice Jay) has concluded both that there was a “credible suspicion” that she had been trafficked to Syria for the purpose of sexual exploitation, and that there were “arguable breaches of duty” by state authorities in having allowed her to make the journey into that country. But none of that meant that the secretary of state could not choose to take her citizenship away and then deny her the right to argue against this decision in person.
And equally, while the idea that she had travelled entirely voluntarily to Syria, as the secretary of state asserted, might be hard for many to accept, including perhaps even the commission, once again, so what? There might well be, at the very least, lots of grey areas around the edges of her supposed voluntary decision to travel. But voluntary was what the secretary of state believed it to be, what the intelligence experts advised it was, and that once again was that – it wasn’t bonkers wrong (in the sense of being a totally irrational) decision, and that was all the court cared about.
The spectre of the supreme court’s ruling on Begum in early 2021 hangs over this decision by Mr Justice Jay and his colleagues. Reflecting that earlier judgment, we see a determination to defer to the widest possible extent to government on the grounds of national security, as well as a lack of any moral urgency in relation to the alleged breaches of Begum’s core human rights. And that’s without mentioning the lack of interest shown in both decisions in the wider international human rights law on the matter.
Issues related to national security and the control of borders have always been hard nuts for litigants to crack, but it is hard to resist the conclusion that the departure of the strongly human-rights-oriented president of the supreme court Lady (Brenda) Hale and her replacement in that position by Lord (Robert) Reed in January 2020 has ushered in a new era of deference. This has gone beyond national security to embrace economic and social matters, even where discrimination in the enjoyment of individual rights can be plausibly argued.
As in the Begum case, the judges are not saying they have no role to play, but they are raising the bar extremely high before they can be tempted into action against the government. Arguably, this is as good as (if less honest than) their declining jurisdiction from the outset.
There is also a new impatience with intervenors in cases, such as NGOs and others not directly involved, but desirous nevertheless of explaining the importance of the issues that the litigation has brought before the court, or campaigners. Under the new dispensation, human rights experts from afar, no matter how esteemed, no matter how legitimised by a UN appointment, can expect to be given short shrift, as many already have been. The current supreme court seems to hanker after a past in which judges mainly adjudicated on civil matters and had next to nothing to say about public law.
This withdrawal by the supreme court from the wider political-legal fray comes at a bad time. Courts are being overtly challenged in many ostensible democracies on the basis that they are not sufficiently mindful of “the will of the people”. Israel is racing down a path already taken by governments in Hungary and Poland (and, of course, Russia).
Boris Johnson may return to power here, and even if he does not, Dominic Raab’s effort to debilitate judicial protection of human rights in Britain (via his bill of rights proposals) may yet secure its passage through parliament. The judges should not do his work for him.
Conor Gearty is professor of human rights law at LSE and a barrister at Matrix Chambers. He is also vice-president for social sciences at the British Academy
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