Robert reed became president of the United Kingdom Supreme Court on 13 January 2020, succeeding Lady Hale. By the end of 2021, the Supreme Court had produced 111 judgments since his appointment, 53 in 2020 and 58 in 2021, with Lord Reed himself sitting in 56 of these cases. These decisions give us an opportunity to assess how his Supreme Court is performing in the current malign political atmosphere. Reed has been a justice since February 2012, making him (with Lord Hodge, who joined in October 2013) by some distance the most senior member of the court, which is at present made up of ten men and two women, all white and all but one educated at some point at Oxford or Cambridge. Reed is not the outlier here, having completed a doctorate at Oxford after taking a law degree in his native Edinburgh. With Lady Hale and Lord Kerr no longer on the court, Reed is the only justice who has a proper seat in the House of Lords (as Baron Reed of Allermuir); the others are called lords and ladies merely as a courtesy. Unlike the US Supreme Court, the UK body does not sit as a full court; most cases are heard by five justices, though the number can be increased if the case is significant. The president and the deputy president, Lord Hodge, are involved in allocating justices to cases (though the registrar has the primary responsibility for this). Reed, who was born in 1956, can expect to serve another five years, or even ten if current plans to change the retirement age of judicial office-holders go through.
It is difficult for courts to hold government to account even when political leaders accept the fundamental need for legal standards. The New Labour leadership responsible for the Human Rights Act in 1998 was frustrated by the Act’s inhibiting effect on the administration’s actions. Few politicians can distinguish as intelligently as the former Conservative attorney general Dominic Grieve between deploring a particular decision made by a court and attacking that court’s existence. Since he became prime minister, Boris Johnson has led a government that has devoted much of its time to undermining the capacity of the UK’s political culture, media and civil society to oppose it. Johnson seems to regard the law not as a core part of our constitutional system but as an unnecessary obstacle to the exercise of executive power. Like the civil service, the BBC and the watchdogs he has treated with contempt, the law needs to be tamed; its demand that government stick by the rules is seen as old-fashioned nonsense.
In 2010 an early list of the quangos to be abolished by David Cameron’s new coalition included the administrative branch of the Supreme Court. Now even more direct threats have been made, with government supporters openly questioning the need for such an adjudicative body and various reviews being conducted into judicial power, both in general and with specific regard to human rights. The Daily Mail in 2016 described as ‘Enemies of the People’ those judges who ruled that the government had to get the consent of Parliament before triggering Article 50. A later unanimous ruling, also Brexit-related, found that Johnson’s advice to the queen that it was legal for her to suspend Parliament was unlawful. It is said that, though he is inconstant in so many ways, the prime minister has a long memory for slights.
Reed’s Supreme Court has reached some judgments strongly assertive of traditional civil liberties and others that insist on the importance of access to justice. But in some areas the tone is markedly different from the one taken by the court under Hale’s leadership. This has been clear in a series of decisions that have been very helpful to government on issues of equality, social policy and human rights. It should not be assumed that the lines the court has taken are in response (conscious or subconscious) to government pressure; it is entirely possible – indeed probable – that the change in direction is primarily driven by the judicial philosophy espoused by Reed and his colleagues, and would have happened even if the court (and the system of the rule of law over which it presides) were not being threatened. Johnson’s Brexit administration is in many ways an exercise in nostalgia, a search for a lost England, and the Supreme Court under Reed is similarly backward-looking. It has reverted to an approach rooted in legal formalism, an extremely narrow reading of the rule of law, while displaying an old-school lack of interest in the lived experiences of those whose plights have brought them to the judges’ attention.
In February 2021 the court unanimously overturned (in a single judgment written by Reed) the Court of Appeal’s order that Shamima Begum be given permission to re-enter the UK in order to contest the decision to deprive her of citizenship made by the then home secretary, Sajid Javid. The case was controversial: Begum left the UK for Syria at the age of fifteen and married an Islamic State fighter there. She was now in a Syrian detention camp. The right-wing press was agitated by the prospect of her return. Reed’s judgment may have been right in law – his criticisms of the approach of the Court of Appeal are severe – but what stands out is the mode of reasoning he deploys. His judgment is almost impenetrably legalistic, with multiple appellate routes simultaneously identified, each with its own legal framework and entailing a different standard of review in the court called on to assess its legality. If my students and I find the case nearly impossible to follow, what must Shamima Begum (or the general public) have made of it? Her situation is barely considered – the decision expressly does not ‘turn on the facts’. These are in any case presented solely in terms of the advice given to the home secretary by his officials and the security services when he was about to make his decision. Individuals like Begum ‘who were radicalised as minors might be considered victims’, Reed writes, but even if they were, this did not ‘justify putting the United Kingdom’s national security at risk’. The court mentions in passing and without comment that she had three children while in Syria, all of whom died.
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