On June 29th, the Court of Appeals ruled that the government’s plan to deport migrants to Rwanda is incompatible with the European Convention of Human Rights. With this decision, it seems appropriate to look at previous occasions in which UK courts have gone against the government.
The UK Courts System
Before we start, the context of the UK courts system should be noted.
Since 2009, the Supreme Court has been the highest court in the land although some cases on this list may well have been settled or passed through the High Court or Court of Appeals.
Unlike the USA for example, where justices have been able to strike down legislation and policies such as the ban of federal recognition of same-sex marriage in the Defense of Marriage Act or Joe Biden’s student debt forgiveness program, UK justices cannot. Due to the sovereignty of Parliament, the courts cannot dismiss legislation but, since the UK’s entry into the European Convention of Human Rights after the Human Rights Act 1998, can be rule legislation incompatible with ECHR regulations.
Although not a preventative barrier, a loss in the courts can be a severe hindrance to the prime minister and their policies as we shall see with the following examples.
AAA and others v. Secretary of State for the Home Department (2023)
Plans to deport migrant asylum seekers to Rwanda have been ongoing for over a year (and three prime minister premierships!) in the face of widespread public opposition.
In recent months, the government’s broader anti-immigration rhetoric under the “Stop the Boats” mantra has faced immense backlash and scrutiny; Gary Lineker spoke out against the government’s messaging, a Home Office assessment found that the £169,000 cost would be over £60,000 more than keeping them, and suffering four defeats in the House of Lords after the Archbishop of Canterbury spoke out.
Just one day after the Lords defeat, the Court of Appeals decided that the Rwanda policy was unlawful, overriding a previous decision in the High Court.
The decision was a loss for the government, especially Home Secretary Suella Braverman, who had been the public face of the policy, once stating “I would love to have a front page of The Telegraph with a plane taking off to Rwanda, that’s my dream, it’s my obsession.”
This is not so say that the decision is final. Rishi Sunak has already pledged to take the case to the Supreme Court, describing the decision as one that he “fundamentally disagree[s] with.” Considering that the decision of the justices was 2-1 with the Lord Chief Justice dissenting and the disagreement between UK courts, it is more than likely the case will go to the highest court in the land to give the final verdict on the policy.
UPDATE: Since this piece was written, the Supreme Court have ruled on the matter. On November 15th, the Court unanimously ruled that the government’s Rwanda policy violated international law in a landmark ruling. It was a major setback for one of Sunak’s major policies.
R (Miller) v. Secretary of State for Exiting the European Union (2017)
In the 2016 referendum, the UK electorate voted to exit the European Union by a margin of 52-48%. The UK government’s attempt afterwards to invoke the Treaty on European Union’ s Article 50 to withdraw the UK from the EU would lead to the so-called Miller case, essential in determining the scope of the royal prerogative in regards to foreign powers.
Article 50, Provision 1 states: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” Activist Gina Miller brought the matter before the Supreme Court, challenging the matter due to the sovereignty of parliament who were yet to pass judgement on the matter. Brexit Secretary David Davis however argued that the use of the royal prerogative means Parliament need not be consulted.
In the High Court, the decision was made unanimously that the executive could not trigger Article 50 without parliamentary approval. The decision led to heavy derision in right-wing newspapers, especially The Daily Mail, which ran the headline: “Enemies of the People.”
In the Supreme Court, the judges ruled 8-3 that Parliamentary approval was needed before the government could invoke Article 50 to exit the EU. They remarked: “The Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union for the United Kingdom to withdraw from the European Union.”
The Supreme Court also ruled that the other devolved legislatures did not need to approve Article 50. This proved contentious in, for example, Scotland, breaking the Sewel Convention with the nation having voted over 60% Remain.
Subsequently, the European Union (Notification of Withdrawal) Act 2017 was introduced and quickly passed in the Commons by 498-114 after the decision of the UK courts.
Nonetheless, Miller’s case has been described by Shami Chakrabarti, former Director of the civil and human rights group Liberty, as “a landmark moment for the independence of the judiciary and the rule of law in the UK,” whilst she receiving cross-party support from the Green Party’s Caroline Lucas, Labour’s David Lammy, and the Conservatives’s Anna Soubry amongst others.
R (Miller) v. the Prime Minister (2019)
2017 was not the last high-profile case Gina Miller filed. Perhaps more significant was the 2019 case relating to Boris Johnson’s controversial proroguing parliament.
In August 2019, new prime minister Boris Johnson advised the Queen to prorogue parliament from September 9th to October 14th. The length of such a suspension was without modern precedent; most prorogations last less than a week whilst none had lasted beyond three weeks since 1979.
The closing of Parliament was met with hostility, with the Black Rod booed and heckled as they prorogued the chamber, with the Speaker of the House labelling the matter a “constitutional outrage.” Many saw its closure as a way for Boris to avoid scrutiny over Brexit, with the UK’s withdrawal date being set for October 31st.
The subsequent Supreme Court case filed by Gina Miller saw 11 justices decide on the matter, the most possible due to the significance and urgency of the matter. In the end, the Court unanimously ruled that Johnson had acted ultra vires (beyond his powers) in his prorogation of Parliament. As it had the effect of preventing Parliament to carry out its functions without reasonable justification, the process was declared unlawful, null, and void, with Parliament resuming its sitting immediately.
Boris subsequently faced backlash from all parties, who demanded his resignation or called for votes of no confidence in Johnson. Former Liberal Democrats leader Vince Cable remarked the case was “a reminder that constitutional rights and democratic processes must be protected, even in times of great political significance,” whilst future Labour leader Sir Keir Starmer commented it was “a victory for parliamentary sovereignty and the rule of law.”
Rulings Against Blair’s Terrorist Measures
Tony Blair was no stranger to controversial policies during his tenure as prime minister. The Iraq War may be the shadow that lingers over Blair’s legacy but beyond that, the introduction of university tuition fees and sucking up to the Murdoch empire were also moves that galvanised opposition to New Labour.
Some of the most contentious of legislation was in regards to terrorism, where many saw the government as acting in an overtly-authoritarian style in their handling of potential terrorists in a post-9/11 and post-7/7 world. Indeed, the Blair government’s first Labour defeat in the House of Commons occurred in 2005 over a 90-day detention for suspects in which 49 Labour MPs – amongst them prominent rebels such as Jeremy Corbyn, Bob Marshall-Andrews, and Dennis Skinner – rebelled, working alongside Opposition MPs to defeat the motion.
Yet, the New Labour ministry also faced challenges to their terrorist legislation in the UK courts.
A v Secretary of State for the Home Department (2004), known informally as the Belmarsh case due to its prevalence in Belmarsh prison, described by The New York Times as “Britain’s Guantanamo”, saw the indefinite detention of foreign terrorist subjects to be unlawful. The case was decided by the Law Lords (predating 2009, this case was heard before the Supreme Court was established. Prior to this, the highest UK court was in the House of Lords). A part of the Anti-Terrorism, Crime and Security Act 2001, the court ruled in an 8-1 decision that such a strategy was incompatible with the European Convention of Human Rights.
Moreover, in HM Treasury v Ahmed (2010) the Supreme Court ruled that the freezing of terrorist assets under the Terrorism (United Nations Measures) Order 2006 was unlawful. The court ruled such a measure showed the government acting ultra vires, with the legislation being null and void, having infringed upon the presumption of innocence in the ECHR whilst also not passing through Parliament (although a bill would pass shortly afterwards).
Another defeat for Blair’s terrorist measures came in the Miranda v Secretary of State for the Home Department (2016) case. The High Court ruled that Schedule 7 of the Terrorism Act 2000, which was used to stop, search, and detain David Miranda, partner of journalist Glenn Greenwald who had a hand in reporting the leak of classified information by Edward Snowden, was not compatible with the ECHR, Article 10 of which relates to freedom of expression.
R (Evans) v Attorney General (2015)
In 2005, Guardian journalist Rob Evans applied for the release of Prince Charles’s letters to Parliament to the public under the Freedom of Information Act 2000.
The so-called “Black Spider” memos, named as such due to the distinctive writing of the Prince of Wales, were a cache of 27 letters written to different government departments and politicians between 2004 and 2005.
The government seemed opposed to divulge the information contained within the letters, sparking a decade-long fight over the contents of the memos. In 2010, an amendment to the FOI Act exempted Sovereign figures such as royalty – showing the government’s resistance to the release. Meanwhile, the fight for the disclosure was the fear of monarchial involvement in government in policy-making. In the 20th and especially in the 21st century, the role of the monarchy is seen to be ceremonial, ‘seen but not heard’, and above party politics yet these letters could undermine such a position.
When an Information Tribunal ruled that the documents could be released in 2012, then-Attorney General Dominic Grieve vetoed the decisions under Section 53 of the FOI Act. His reasoning was that as the letters were of a personal and private matter with the release of its contents “would potentially have undermined his position of political neutrality.”
When the case eventually reached the Supreme Court in 2015, they ruled 5-2 in favour of a previous Court of Appeal ruling. The UK courts had decided to stamp the seal of approval for release.
The release of the letters was described by CNN as having “sparked a debate about the appropriate level of political involvement by the British monarchy.” The letters did reveal some controversial comments, such as Charles’s calls for a badger cull to prevent tuberculosis in cows and calling of the Human Rights Act a “fundamental distortion in social and legal thinking,” but was perhaps, more importantly, a crucial step towards public accountability and transparency, especially for a Prince of Wales, heir to the throne, and future King – even if a move against the wishes of the government.
Epilogue
To conclude, the above cases show how the judiciary can prove an important check on the government.
Able to scrutinise the actions of the government, the impartial and independent UK courts can make judgements that can stifle the government’s attempts to break international law and act ultra vires.
With the UK’s High Court ruling in regards to the Rwanda policy, it proves a further obstacle to the government’s immigration policy – one of their five pledges – but they are clearly far from the first to have a public punch-up with the purveyors of parliamentary perusal.
GRIFFIN KAYE.
