The UK Supreme Court’s ruling that the government’s Rwanda migrant removal scheme is unlawful has shown it can still be a thorn in the side of ministers, despite a reputation in recent years for judicial conservatism.
The unanimous decision, announced by court president Lord Robert Reed last week, dealt a blow to Prime Minister Rishi Sunak’s policy aimed at halting irregular Channel crossings ahead of the general election expected next year.
It also demonstrated that Britain’s highest court remains ready to curb executive authority, even after the exit in 2020 of Reed’s predecessor Lady Brenda Hale.
Her interventionist image was cemented four years ago when she led the court in blocking then premier Boris Johnson’s attempt to push through his Brexit deal by suspending parliament just before the UK was set to leave the EU.
The court’s only woman president was replaced upon her retirement a few months later by its first Scot. Reed, a softly spoken former Edinburgh advocate, prefers to keep a lower profile than Hale, an ex-Law Commissioner who was once criticised in the Daily Mail for her “reforming zeal”.
Several legal experts said the court, which was set up in 2009, had exercised greater restraint since Reed took the helm, being more prone to reject human rights claims and rule in favour of public authorities.
Sir Robert Buckland KC, former Conservative justice secretary, said there had been a change in “atmosphere” after the departure of Hale, who was “quite a judicial activist”.
He voiced concern that UK courts had imposed their own “moral judgment” in some cases over the years, and said he had been “pleased” to see a more cautious “direction of travel”.
Lewis Graham, Law Society fellow in Law at Wadham College, Oxford university, said a pattern of decisions since 2020 and the legal reasoning behind them amounted to “evidence of the court becoming more conservative”.
But the Rwanda ruling is a sign that the Reed-led bench can still impede the government, even if it is less powerful and politically charged than the US Supreme Court.
Five judges, including Reed and his deputy Lord Patrick Hodge, said the plan to send asylum seekers to the African nation put them at “real risk” of later being returned to their home countries and mistreated.
Reed stressed the court was not expressing “any political view”, but the ruling sparked a row at Westminster. Tory deputy chair Lee Anderson said Sunak should ignore it.
Although Sunak said he would “respect” the ruling, he warned that he planned to introduce emergency legislation designating Rwanda a “safe” country for asylum seekers.
The firmness of its judgment surprised several Supreme Court watchers, not least since Reed has suggested that he is less willing than other judges to override the executive on contentious subjects.
Before becoming president, he told the BBC that in “areas of controversy” he was more inclined to “leave it to the political branches of government to decide on the appropriate policy”. That philosophy and some of the decisions reached by Reed’s court have drawn criticism from human rights lawyers.
They cite the case of Shamima Begum, who was stripped of British citizenship four years after leaving the UK in 2015 as a schoolgirl to join Isis, the Islamist terrorist group.
Reed’s court dismissed her appeal. In a ruling in 2021, he said the lower Court of Appeal had failed to show proper “respect” to the home secretary’s assessment of national security risks.
In a separate case in the same year, the court dismissed a challenge over former Tory chancellor George Osborne’s policy to limit child benefit payments to two children per household. The claimants, two single parents, had argued that the policy breached human rights law.
“I think in both those cases, there was a contravention of rights,” said Baroness Helena Kennedy KC, a Labour peer. “Reed and the current court are cautious about the purposes of law,” she said.
Still, she added Supreme Court judges were quite capable of “evaluating evidence without letting their own gut feelings interfere”.
The extent to which Hale’s exit has changed the court’s approach is subject to debate in legal circles. Graham said political hostility directed towards it at the height of the Brexit row might have made the court more cautious, irrespective of the change in president.
“I wouldn’t be surprised if that was a relevant consideration” for whoever was in charge, he said. Still, he added it was “pretty hard” not to link Reed with judicial conservatism.
Despite Tory dissent over the Rwanda ruling, few politicians are calling for the Supreme Court’s powers to be watered down — as some did at the height of the Brexit row. Buckland said the Rwanda case was “about the evidence” and not relevant to the question of “whether the courts were embarking upon a more activist role”.
But with the government determined to press ahead with the removal scheme, the Supreme Court might be forced to weigh in again.
Jed Pennington, partner at Wilson Solicitors, said legislation to designate Rwanda “safe” risked violating the UN Convention Against Torture as well as the European Convention on Human Rights, putting the courts “in an invidious position”.
Other cases could also thrust the Supreme Court back into the spotlight. It is expected to be the ultimate venue for a legal fight between the Scottish and UK governments over London’s decision to block Holyrood legislation making it easier for people to change their gender.
For now, though, the strength of the Rwanda judgment says far more about the weakness of the government’s legal case than the approach of the Supreme Court, according to Kennedy.
Reed and his colleagues had assessed “a serious body of evidence” about Rwanda’s asylum system, she noted. Graham said: “Even a more restrained court will rule in a more activist way sometimes.”