How judges took control of Britain

Telegraph

a day ago

Trust in Britain's legal system is at a low ebb. Two thirds of the public believe that the criminal justice system has become politicised, and that judges make some decisions in line with their personal views rather than the law, according to a survey by pollsters Merlin Strategy. The constant flow of boats across the Channel, meanwhile, appears increasingly to be fuelled by a judicial system which actively works to undermine attempts to remove those arriving from Britain.
It is perhaps a measure of the heat of public feeling that Sir Keir Starmer – former director of public prosecutions, Left-wing human rights lawyer – became, briefly, the public face of revolt against the courts. When Conservative leader Kemi Badenoch raised the case of the Palestinian family granted the right to live in the UK even after applying for a scheme designed for Ukrainians, Sir Keir Starmer agreed that the decision was 'wrong', adding that 'it should be Parliament that makes the rules on immigration; it should be the Government who make the policy'.
This is an uncontroversial statement of the United Kingdom's constitutional settlement, or at least it should be. To Lady Chief Justice Sue Carr, however, it looked like a challenge. She said that 'both the question and the answer were unacceptable', and that it was 'for the Government visibly to respect and protect the independence of the judiciary'.
Had Sir Keir been in the mood for a real row, he might have answered in turn that it was for the judiciary to visibly respect and protect the sovereignty of Parliament, and the executive authority of the Government. And if he had really wanted to set the cat among the pigeons, he could have answered with a question: who, actually, is running the country?
The war on welfare
That Britain has a welfare problem is well-established. This year, spending on the personal independence payment (PIP) alone is set to cost £29bn, up £13bn in five years since the pandemic. Attempts to cut it, however, came unstuck in spectacular fashion, with a major row between Sir Keir Starmer and his backbenchers.
The strangest part of this is that a great deal of the increase was never intended by the government in the first place. In fact, the introduction of PIP was supposed to cut the number claiming benefits by 600,000, saving £2.5bn. Instead, caseloads and spending soared. Some of this was poor policy design. But some was the result of judicial decisions.
In 2016, in the case of MH vs the Secretary of State for Work and Pensions, a panel of judges decided that 'psychological distress' should be considered when deciding whether applicants should receive additional payments to help with mobility, opening up these funds to a large number of applicants with mental health issues. The government, surprised, introduced regulations to undo this decision, clarifying that its policy was not to make these awards.
This resulted in another round of legal action, and in 2017 the High Court ruled that these regulations were also unlawful as they discriminated against the disabled in breach of the convention on human rights, and had not been sufficiently consulted on. The government backed down, and set about backdating claims. A rough estimate for the end result could today be in the region of £1.4bn of spending per year. This is far from the only case, however, where human rights claims have shredded common sense.
The march of human rights
The same convention which underlay the PIP decision has made our immigration system all but impossible to enforce. Supposedly 'exceptional' human rights claims now account for around 30 per cent of deportation cases, triggering Home Secretary Yvette Cooper's plans to crack down on their use.
Beyond the Gazan applicants to the Ukraine scheme, one striking example concerned a Nigerian woman who joined a terrorist group banned in Nigeria, but not proscribed in the UK. The judge decided that the woman had joined the organisation specifically 'in order to create a claim for asylum'. However, as this had in turn created 'a well-founded fear of persecution', asylum was granted.
It was a maddening outcome. It was also in line with a long-running strand of asylum law. In 1996, the European Court of Human Rights held in the case of Chahal vs the United Kingdom that Mr Chahal – 'a leading Sikh militant suspected of involvement in acts of terrorism' – could not be deported from Britain as this would give rise to a 'real risk' of torture or inhuman treatment in violation of his human rights.
In combination with a 2010 Supreme Court decision in the case of HJ and HT vs the Home Secretary – where the court held that persecution which was avoidable with 'discretion' was still a bar to deportation – this has given rise to an absurd cottage industry.
As one legal figure put it, the goal for many asylum applicants as a result is to 'bootstrap' refugee status by deliberately creating a danger to themselves through protest. Travel through London and you will frequently find protests outside the embassies of less than perfectly democratic regimes where would-be asylum seekers try to get themselves to prominent positions where they can claim to have drawn the attention of embassy staff, or have photos taken waving banners to post online and create synthetic risk.
The original sin, here, is the way Britain chose to handle the incorporation of human rights into British law. Labour, in 1998, could have proceeded in two ways. It could have stated that the government would identify potential clashes with human rights law, and resolve them. Instead, it effectively chose to hand the entire matter off to the judiciary, creating a duty on every judge to apply the rules of the European Convention on Human Rights, and in effect embedding political values into the legal system.
This had two effects. The first was to put vaguely worded rules in front of judges who now had to work out how to apply them. The second was to habituate the judiciary to making value judgments in addition to legal ones. This was a marked change in the culture of the profession, and its effects are visible in these decisions. Yet while politicians have complained, they have rarely acted to correct judges by passing legislation to reverse judgments.
The destruction of Birmingham
The most visible manifestation of this dysfunctional relationship between Westminster and the courts is on Birmingham's streets. The city is effectively bankrupt, and a lengthy bin strike has seen piles of rubbish accumulate in the street while apocalyptic tales of giant rats spread. Birmingham was not a well-run council, but what finally tipped it over the edge was a court ruling.
Over the period from 2012 to 2023, Birmingham City Council paid out almost £1.1bn in equal pay claims, with a bill of £760m still to settle. The council hadn't paid women less for the same work as men. Instead, it had paid them less for work 'rated as equivalent'.
The argument went something like this: people of both sexes working as cooks, cleaners, catering or care staff were not paid bonuses awarded to roles that were traditionally more male: refuse collectors, street cleaners, road workers and grave diggers. This was a contravention of the principle that people should be paid the same for equivalent work. As a result, hundreds of millions of pounds of compensation should be paid out.
This case arose because Parliament placed a duty on courts to enforce this concept of equal value. The only notable oddity was that the case made it to court in the first place. When issued, the claim had long exceeded the time limit for submission to an employment tribunal. No matter; the Supreme Court decided that loose phrasing within the Act meant the claim could instead be taken directly to the courts.
As Jonathan Sumption wrote in his dissent, 'poorly drafted' legislation added to by 'a complex history of ill-thought-out amendments' had created a potential loophole; the intention of Parliament, however, had probably been an attempt to create certainty by avoiding old claims rearing their heads years on.
This is a clear example of potential judicial overreach. But again, the fault is at least partly with Parliament. Clearer legislation could have prevented this problem arising. As it was, the case proceeded, wrecking the city's finances and creating a new problem in the process.
To avoid paying different jobs different wages, the council was going to have to scrap certain roles, in turn handing significant wage cuts to some in refuse collection. The bin men promptly went on strike. The council claimed that to do anything else would open it to a second round of equal pay litigation. Rubbish piled high on the street. And the courts continued their war against economic theory.
The equal pay fiasco
After Birmingham, it was the turn of the retailer Next. Staff in warehouses and shop floors were paid differently. Roughly 53 per cent of the relevant warehouse staff were male; 78 per cent of the shop staff were female. There was no evidence that the decision to pay these roles differently reflected 'direct discrimination'. But the work was deemed to be 'equal value', raising the prospect of a hefty settlement.
The judge presiding over the tribunal accepted that retail and warehouse work were 'separate markets', with the latter having a higher vacancy rate, and higher pay. Next had paid its staff market rate for their work in their regions. It had attempted to 'reduce cost and enhance profit'. However, the 'business need' to do so 'was not sufficiently great as to overcome the discriminatory effect of lower basic pay [for shop staff]'. So Next was forced to shell out £30m in back pay.
That the claimants themselves had said they did not want to work in the warehouses unless offered 'a lot more money' was irrelevant. So, too, was the fact that workers including the lead claimant had been offered the chance to make that switch for the higher pay, and that they had not done so. The judgment noted that expecting them to have done so would be 'to apply an unfettered free-market model of supply and demand'. Even more telling is that this offer was made to 25,000 retail staff of whom just nine tried a trial week. Of this group, seven took up an offer, and four made it through their first year in the role.
Now Asda is facing a potential £1.2bn liability in a similar case, with further actions brought against Tesco, the Co-op, Sainsbury's and Morrisons. The result is a system in which wages are no longer set by market supply and demand, with companies worrying about legal action years down the line.
This decision was not unforeseeable. In the view of Michael Foran, associate professor of law at the University of Oxford, the legal framework is acting as you would expect it to. 'The point of this legislation is to say that the market isn't paying men and women fairly, and to intervene. Parliament created a system that required judges to look at cases and ask whether work of equal value is being paid the same. Parliament required courts to look beyond the market to assess what counts as equal value. Then when judges do that, people complain.'
Climate legalism
Some cases are more controversial still. The economic argument for developing the Jackdaw and Rosebank fields in the North Sea is almost inarguable. The gas in the Jackdaw field was expected to cover 6-7 per cent of UK demand; Rosebank would deliver £30bn in tax revenue for the Treasury. The two projects had received £2.8bn in investment over their lifetime. They had filed their paperwork, received their permits years ago – 2022 for Jackdaw, 2023 for Rosebank – and set about work.
But in a ruling earlier this year, Lord Ericht decided that 'the private interest of members of the public in climate change outweigh the private interest of the developers', demanding a new environmental impact assessment which covered not only the actual development of the site itself, but the emissions of the fuel extracted. That the British Government had said these details didn't need to be included in the assessment was irrelevant; the developers 'knew or ought to have known at the time that the consents were granted that the law was uncertain'.
What had changed in the period between the initial grant of permission and the ruling was a Supreme Court judgment in 2024, which decided that the burning of produced fuel should be included in environmental impact assessments. This did not emerge from nowhere. The regulations required impact assessments to assess 'direct and indirect significant effects' of projects on the environment.
Given the willingness of campaigners to use the legal system to block or delay work they dislike, this was always going to be a potential tripwire. Earlier this year, The Telegraph covered the story of Chris Todd, whose court challenges – none of which had yet succeeded – have raised the cost of road schemes by £200m-£300m. These cases, and others like them, have caused considerable damage. In an article earlier this year, Sir Keir Starmer criticised activists for 'robbing people of lower bills and good jobs' through extended legal action with 'no chance of winning'. Westminster, however, continues to leave the system that permits this behaviour intact.
The Empire of Law
The strand that runs through these cases is the retreat of Parliament and the Government from dealing directly with complexity. One of the downstream consequences of handing sweeping powers to judges to make political decisions is that they have now grown used to doing so.
Lord Falconer remarked in 2003 that Labour's approach was 'to place power where it should be: increasingly not with politicians but with those best fitted in different ways to deploy it'. But as Richard Ekins KC – head of Policy Exchange's Judicial Power Project and professor of law at Oxford University – notes, judges are 'not well placed to govern, or to stand in judgment over Parliament's decisions'.
Attorney General Richard Hermer's Bingham lecture in 2024 presented a fascinating glimpse into the culture that has taken root: the rule of law conceived not as a 'procedural and formal conception' but an approach that 'must afford adequate protection of fundamental human rights', and which places adherence to international law at the heart of the state, 'unequivocally' supporting the European Convention on Human Rights and its Court. These views are now at the heart of government, and the resulting paralysis is illustrative of what rule by lawyers looks like in practice.
Hermer is an extreme example of the prevailing legal culture in Britain, but its effects are widely visible. As Prof Ekins puts it: 'In most cases, courts interpret the law in line with what Parliament intended. But there is a subset in which some judges will invoke principles to override Parliament's intentions, which is flatly out of line with our constitutional settlement.' These cases, in turn, tend to arise from three particularly problematic bodies of law: the human rights system, judicial review, and – at least prior to Brexit – our obligations to the European Union.
These require judges to act almost as political creatures. In some startling cases, the courts appear to have directly contended with the will of Parliament, and emerged on top, or to expand their power without legislative authority. As Prof Ekins notes, the rise in judicial review – and the expansion in its scope – was largely the result of a series of court decisions, rather than legislative changes.
This, in turn, caused Parliament to write explicit 'ouster clauses' into legislation, stating that certain matters were beyond the power of courts to review. But sometimes even these are not enough.
Take the case of Privacy International, where the organisation brought a case over GCHQ's use of 'hacking'. There the Supreme Court decided that despite clear wording in the Regulation of Investigatory Powers Act, the relevant ouster clause had to be interpreted with the presumption that it would allow judicial review unless beyond any possible doubt. Moreover, one judge openly asserted that even in the event such a clause were written, it could well be ignored.
This imperial attitude would seem to be a far greater threat to Britain's constitution than any criticism of judicial overreach. The pair of Gina Miller judgments (on the invocation of Article 50, and the prorogation of Parliament), the decision to quash the Attorney General's ministerial veto on the release of the then-Prince of Wales's letters to departments, and a host of others have made it appear that some members of our judiciary would be more at home in a kritarchy than a constitutional monarchy.
Taking back control
Britain's policymakers can barely move without a judge tripping them up. That there is a need for a judiciary is beyond dispute. To borrow from the economics of contract theory, laws are not 'complete'. Parliament cannot set out all the possible permutations and combinations of events that might fall under a law. It cannot, either, offer exhaustive definitions of each term deployed. The role of judges is in part to fill in these gaps: to decide which cases fall where, and process them accordingly. Sometimes they will err, or use their power to set policy as they believe it ought to be, rather than as it is.
Some of this is down to Parliament failing to decide, passing the buck to the judges. Some of it is down to legislators failing to rebuff this judicial tendency. Some of it speaks to the sheer complexity of the legislative environment Westminster has created, where it is all too easy to trip on a previous law. But the result is clear.