In the climate of Brexit, the prorogation judgment, and the December 2019 general election, constitutional reform (and, specifically, judicial reform) appears to be back on the political agenda. Suella Braverman, recently appointed as the UK Government’s attorney general, believes that “the political has been captured by the legal” with “chronic and steady encroachment by the judges”. When the Court of Appeal ruled that those facing deportation need proper access to legal advice before the deportation can occur, Dominic Cummings is reported to have remarked that it was a good example of the dysfunction of the state.
Combine the Government’s attitude with the general antipathy towards judges often displayed by popular media (‘Enemies of the People’ being one example of many), and it is not too difficult to conclude that the tensions between the Court and Parliament may come to dominate Lord Reed’s tenure. We are all familiar with the form of Lady Justice: blindfold applied, and sword and scales outstretched. But is Lady Justice lacking a shield? Will, in fact, Lord Reed’s agenda revolve around defending the role of the Supreme Court rather more than he might hope? Should it?
Obviously, none of this will be new ground for Lord Reed. When delivering the combined judgment ruling that the last employment tribunal fees were unlawful, he very poignantly noted: “Courts exist in order to ensure that the laws made by Parliament, and the common law created by the Courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law”. Reinforcing, educating and re-stating the role of the Supreme Court is part of the President’s role, and we can expect Lord Reed to continue with this exercise both within and outside of the Court itself.
Further clashes between the Government and the Supreme Court are inevitable, and it is possible to predict where those clashes might lie under Lord Reed’s tenure. Speaking at the Bentham Association Lecture in 2019, Lord Reed outlined key aspects of change following the development of the Supreme Court. In particular, he celebrated the statutory power of the Supreme Court to examine issues of devolution and matters relating to the relationships between the United Kingdom’s constituent parts. Given a political climate where 48 of Scotland’s 59 House of Commons seats are filled by Scottish National Party representatives, it is not far-fetched to imagine that the Supreme Court will have a decisive voice in the rumbling debate over whether there should be another Scottish independence referendum.
Terrorism, or, more appropriately, the rights of those convicted of terrorism offences, is another issue about which the Supreme Court has attracted historical criticism. The Government’s plans to extend the sentences of those already serving terrorism convictions may lead to appeals on human rights grounds. In such cases, Lord Reed would no doubt seek to emphasise that the Court applies the Human Rights Act 1998 and holds the current executive to account against legislation enacted by Parliament.
Outside of the law, we can expect Lord Reed to uphold the Supreme Court’s principles of openness and accessibility. Compared to the House of Lords, the Supreme Court is a very open place to visit. Around 80,000 visit the Court each year, and there is a team on site to coordinate visits. It is possible to hire the venue for corporate events to allow people to learn more about the Court. At a time of criticism and additional scrutiny, such principles should hopefully assist to educate the public about the Supreme Court and be part of the shield to defend the current system.
It will be interesting to see how the Supreme Court develops, changes or, perhaps, does not change under Lord Reed. In particular, only time will tell how public perception of the Court may be affected by the hangover of the prorogation judgment, or how it may be informed by noises from government and the media. What Lord Reed does to absorb, tackle or deflect these points will probably direct how he is remembered at the end of his tenure.
Ashley Fredericks is the solicitor managing the Business and Enterprise Law Service at NLS Legal Advice Centre, the teaching law firm attached to Nottingham Law School at Nottingham Trent University.