The new case signals the “second front” in Australia’s detention jurisprudence. In NZYQ, the High Court held that indefinite administrative detention of non-citizens was unconstitutional once removal from Australia was no longer practically possible. That decision, delivered in November 2023, overturned nearly two decades of precedent and prompted the release of more than 140 people. In response, the government swiftly enacted new legislative controls designed to maintain surveillance and containment over those released, without formally reincarcerating them.

The constitutional issue now before the Court is whether such coercive visa conditions cross the line between regulation and detention. If this new regime restricts people’s freedom, it might once again breach Chapter III of the Australian Constitution, which reserves the exercise of judicial power—including the power to impose detention—for the courts. Therefore, the difficulty strikes at the heart of Australia’s separation of powers: will the executive, in the name of “risk management,” impose restrictions equivalent to imprisonment without judicial consent?

This question reveals a unique constitutional landscape in Australia. Since a national human rights charter does not exist, there is no express constitutional right to liberty. Human freedom is protected structurally through the rule that only courts can order detention. In NZYQ, the High Court applied that principle to ascertain that administrative detention ceased to be lawful once its statutory purpose—to assist deportation—could no longer be met. Whether the logic applies to a post-detention regime in the form of intensive monitoring rather than physical confinement will be a matter of judicial consideration ahead.

The question is not only the reach of executive power but the meaning of liberty itself. The government defends its measures as necessary to protect the community from non-citizens with criminal histories. The plaintiffs counter that constitutional limits cannot be overridden by administrative convenience. As the High Court has emphasised, the Constitution does not permit the executive to achieve indirectly what it is prohibited from doing directly.

From a global standpoint, the controversy extends well beyond Australia’s borders. Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees freedom from arbitrary detention. The UN Human Rights Committee’s decision in A v Australia (1997) had previously found Australia’s mandatory immigration detention regime to be in breach of that provision. The return of detention-like controls—now known as “supervision”—gives rise to familiar problems of compliance with responsibilities imposed by the international community.

Comparable struggles are visible across jurisdictions. The United Kingdom’s Rwanda deportation scheme and the United States’ ICE detention practices both test the limits of executive discretion in the realm of migration control. Australia’s current litigation thus contributes to a global dialogue about how liberal democracies reconcile border management with constitutional and human rights norms.

As the High Court prepares its judgment, the stakes could not be higher. If it recognises that coercive supervision can amount to a deprivation of liberty, it will reaffirm the judiciary’s central role in safeguarding rights through constitutional structure rather than statutory charters. If not, Australia may witness the quiet reconstitution of indefinite detention under another name. Either way, the outcome will shape not only the future of Australian constitutionalism but also the global understanding of freedom in an age of securitised migration governance.

The UN Special Rapporteur on the independence of judges and lawyers has underlined the systemic threat involved in increasing executive or legislative control over courts. While laws that alter how judges are appointed or removed are not necessarily indicative of capture, such changes should be interpreted as autocratic when they undermine courts’ ability to check political power or increase the influence of political affiliations in their daily work. The proposal creates both kinds of risks.

Replacing all judges with popularly elected ones

A first risk of judicial capture arises as the proposal mandates the immediate removal of more than 1,500 federal judiciary members— including Supreme Court justices, federal judges, and magistrates – and their replacement with new ones to be elected by popular vote. The reform also provides that each of the 31 states and Mexico City should establish their own rules for electing approximately 5,000 local judges. The removal alone undermines the guarantee of tenure. Invoking the United Nations Basic Principles on the Independence of the Judiciary, the Inter-American Court of Human Rights (IACtHR) has established that any removal from office must be based on permitted grounds, such as when judges have reached retirement age, their term of mandate has ended, or for serious misconduct or incompetence. None of those grounds appears to be applicable here, raising suspicion that the President’s motives are more about securing a politically inflected judiciary.

Even if overriding the principle of irremovability (and creating a serious disruption in active judicial processes) could be ultimately justified on grounds of institutional reform, electing judges might not be compatible with international human rights standards. While international law does not establish specific procedures for designating judges, it does mandate that their selection should be made exclusively based on their personal merits and professional qualifications. The judicial function must be guided by integrity and quality, not political endorsement. Notably, the UN Human Rights Committee has observed that electing judges for fixed terms does not ensure their independence.

Moreover, electing judges poses an enhanced risk in the Mexican context due to a significant problem with criminal organisations. The proposal states that public or private financing for judicial campaigns will be prohibited. However, it does not state how candidates will gain public support. It has been argued (see here and here) that such a measure would make candidates vulnerable to external pressures, not just from political parties or interest groups but also from organised crime.

Establishing a Disciplinary Court

A second risk of judicial capture arises with the establishment of a popularly elected Disciplinary Court. This Court would be exclusively responsible for the oversight and discipline of all federal judicial officials, and its decisions would be final. The proposal grants the executive and legislative branches the power to pre-select candidates who will run for the Court’s popular election. This design again fails the international human rights test. Any disciplinary system must be insulated from political interference and inspire confidence in the judicial official facing a disciplinary proceeding. In contrast, the pre-selection and popular election of members of the Disciplinary Court increases the possibility of appointment based on their political affiliation.

Additionally, the disciplinary grounds for sanctioning judges are vague and open-ended (eg “acts contrary to the public interest”) and thus incompatible with inter-American standards, which require those grounds to be clearly established in law under objective criteria. Such broad discretion cannot provide the breathing space that judges need to check political power and protect minority rights.

In sum, the President’s proposal poses serious risks of autocratisation through judicial capture. Even if not approved, the proposal itself signals the erosion of judicial independence as a democratic value in public discourse. It showcases the impact of derogatory rhetoric against the judiciary, which was pervasive during the current administration and has now become widespread. This should set off alarm bells not only in the country but also throughout the Americas. While the international community has recently expressed concerns about the proposal, there is a need for further mobilisation to prevent an expansion of this much-anticipated autocratic wave in the region.

The intervention of the Tribunal Constitucional in the parliamentary debate in Spain, as discussed to in Part I, has attracted strong criticism, including four blunt dissenting opinions by the judges in the minority. This part considers the arguments used to justify the intervention in the decision.

To recall, the Court justified its intervention as a preventive measure to protect the political rights of the minority MPs in parliament, in face of an important reform being passed as an amendment of an unrelated bill in parliament (para. 6). The Court has not yet decided about the substance of the case: the Court is observing that there exists a prima facie violation of rights, and the suspension of the parliamentary debate is imposed as a preventive measure.

The disputed question here is whether the power to impose preventive measures by the Court includes the power to suspend a parliamentary debate. Article 56 of the LOTC – the regulating statute of the Court – clearly states that the general rule is the non-imposition of preventive measures: these will only be permissible in contexts of “exceptional urgency” (Art. 56.6), and “provided that the suspension does not cause a serious affectation to a constitutionally protected interest or to the fundamental rights of another person” (Art. 56.2).

There is clearly a constitutionally protected interest at stake in this case: the principle of parliamentary autonomy. The Court has previously recognized the importance of this principle, which is “founded in the necessity to remove Parliament from possible interferences from other institutions” (STC 38/2022 para. 3). This principle stems from the central position that the legislature occupies in the constitutional framework, being the only institution directly elected by citizens.

To protect parliamentary autonomy, the general procedure of review of constitutionality of legislation (recurso de inconstitucionalidad) operates exclusively a posteriori, once the law has been passed and published (Art. 31 LOTC). In this way, the Court cannot intervene until the will of parliament has been fully formed by the completion of all stages of the parliamentary process. A general mechanism of preventive review of legislation once existed, but it was removed by parliament in 1985 because it was regarded as a “distorting factor of the purity of our system of constitutional relations” (LO 4/1985, in the preamble).

The court oversteps this important rule in granting the recurso de amparo remedy, generally aimed at the protection of fundamental rights, to establish a de facto preventive review of constitutionality of the decisions of parliament. This measure causes a serious affectation to a constitutionally protected interest, the principle of parliamentary autonomy, and it is therefore a misuse of the power of the court to impose preventive measures, as regulated in Article 56 LOTC. In their dissenting opinion, justices in the minority indicate that this decision entails “surpassing the limits of constitutional justice […], converting the court in an umpire of the legislative process, altering the fundamentals of our parliamentary democracy” (first dissenting judgement, section 1).

The judgement answers these concerns by repeatedly stating that “the legislature must respect the limits of the constitutional text” (para. 5), and that “the centrality of Parliament in our democracy does not imply that it can exercise its functions […] without strict respect to the [Constitution]” (para. 9). But no one is disputing whether the acts of parliament should be in accordance with the Constitution and subject to the review of the Court. In dispute is whether this review can take place on a preventive basis, departing from the general rule of review a posteriori, violating the autonomy of parliament. No argument is given to respond to this concern.

Such an approach to the principle of parliamentary autonomy does not leave the Tribunal Constitutional at the complete mercy of the parliamentary majority. The defining elements of the Court, such as its basic rules of composition, its jurisdiction and, most importantly, its existence, cannot be amended by statute, because they require an extraordinarily costly and difficult process of constitutional amendment (Art. 168 of the Constitution).

The decision of the Tribunal Constitutional undermines the autonomy of parliament, dangerously altering the system of separation of powers of the Spanish constitution.

On the 19th of December 2022, the Spanish Tribunal Constitucional took a very controversial decision by suspending a parliamentary debate in the Senate about the reform of the rules of appointment of constitutional judges. The decision has attracted strong criticism, both from politicians and scholars, as well as four blunt dissenting opinions by the judges in the minority.

Constitutional courts are creatures operating in the terrain between law and politics. Although they take decisions based on legal reasoning, their decisions have far-reaching political implications. That is why their members’ appointment procedures are often different from those of ordinary courts, involving the intervention of democratic institutions. The Spanish Tribunal Constitucional is no exception: the Court is composed of 12 judges, 4 being appointed by the lower chamber of Parliament (Congreso de los Diputados), 4 by the upper chamber (Senado), 2 by the executive, and 2 by the council of the judiciary (Consejo General del Poder Judicial, or CGPJ).

This last institution, the CGPJ, is the governing institution of the judiciary. It is responsible for appointing 2 constitutional judges by a qualified majority of 3/5 of its members. For the last few months, the conservative minority within the CGPJ has been blocking the appointment of the 2 constitutional judges the institution is responsible for, refusing to reach an agreement with the progressive majority. As a result, some of the constitutional judges have been performing their duties with expired mandates. To overcome this obstruction, the governing parties proposed a reform of the rules of appointment of constitutional judges by the CGPJ, so that a qualified majority would no longer be required in case of failing to appoint the judges by the deadline.

The problem came with the formal instrument used by the governing parties to propose such a reform: instead of proposing a new bill to reform the rules of appointment of constitutional judges, they introduced the reform by adding amendments to another unrelated bill. According to the conservative opposition in parliament, this was a violation of their political rights as MPs. Indeed, according to the consolidated doctrine of the Court, an amendment “cannot give birth to a new reality” (STC 119/2022 para. 6); amendments should maintain a “relation of homogeneity” with the amended text, so that “new realities” should be conveyed through new bills. Using the amending power to introduce unrelated elements to a bill has the effect of unduly restricting MPs’ opportunities for deliberation, resulting in a violation of their political rights. Consequently, the conservative MPs brought the reform to the Court, alleging a violation of fundamental rights. This is where the Court, in admitting the appeal, suspended the parliamentary debate as a preventive measure.

The conservative MPs were correct to stand up for their rights. Passing such an important reform as a “rider” sets a dangerous precedent. However, suspending parliamentary debate as a preventive measure leads to a much more profound constitutional problem: the violation of the principle of parliamentary autonomy. This principle protects parliament from undue interventions from other powers, signalling the special position of the legislative power in the constitutional scheme, being the only institution directly elected by citizens.

Because of the principle of parliamentary autonomy, it is established that judicial review of legislation operates only a posteriori: the Court cannot decide about the constitutionality of a law until it has been passed and published (Art. 31 LOTC). In this way, decisions of the legislature are subject to the review of the Court, but that review does not entail an intervention while debate is ongoing. With this decision, the Court has unduly used its powers to impose a de facto preventive review of constitutionality of the decisions of the legislature, interfering in the parliamentary debate and, in consequence, violating the principle of parliamentary autonomy. It is the first time that this happens in the Spanish parliament – although there is some precedent of the Court suspending debates in the Catalan Parliament.

Further discussion about the reasoning used by the judges to justify such an intervention can be found in Part II.

Want to learn more?

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Resolution 46/1 has far-reaching implications. First, it signifies a change in the approach taken by the UNHRC against Sri Lanka. The UNHRC has now been gradually taking a stronger stance on the issue of human rights in Sri Lanka. There has been a shift in their stance after the decision by the Sri Lankan government in 2020 to withdraw from their commitments to create an accountability mechanism. This forms the next step in the OHCHR Investigation in Sri Lanka, whose report indicated that war crimes were committed by the Sri Lankan government. Another OHCHR report stated that the constant failure of the Sri Lankan government to address historic war crimes is an early warning of the risk of heightened future violations. The UNHRC needed to take some action, and this Resolution forms a significant response. It also signifies that the international community is taking cognizance of the situation brewing in Sri Lanka and is ready to act.

Second, the effect of the Resolution will primarily be determined by the action taken by member states considering it. It can be used for taking concrete action like a referral to the International Criminal Court (‘ICC’) or setting up an independent international criminal tribunal. The setting up of an independent international criminal tribunal is more practical as Sri Lanka is not a party to the Rome Statute, and seeking compliance with an ICC judgment might prove troublesome.

Member states must act, as even while the Resolution was being discussed within the UNHRC, Sri Lanka has been denying every accusation while at the same time proposing legislation discriminating against minorities. For instance, the government is considering a proposal to ban over a thousand Islamic Education Centers known as madrasas. This move comes under the guise that these centers are working outside the national education policy by imparting extremist ideology. Sri Lanka is a state party to the International Covenant on Civil Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This move would violate Articles 18 and 27 of the ICCPR, which state that every state party shall respect the liberty of parents to provide religious or moral education to their children and that religious minorities have the right to profess and practice their religion in their community. It would also violate the obligation on the Sri Lankan government under Article 13(3) of the ICECSR to allow parents to send their children to the school of their choice as long as the school fulfils minimum educational criteria. Second, the government also issued new regulations under the Prevention of Terrorism Act 1979 which denied the detainee the right to challenge their detention and suspended habeas corpus proceedings. This violates Article 9(4) of the ICCPR, which states that every detainee must be entitled to take their case before a court. The Sri Lankan government has suspended these rights. The fact that this was proposed while the government was being criticised in the UNHRC for its lack of accountability in redressing human rights violations raises concerns.

This view is set out briefly but clearly in chapter 2 of the Government’s Response entitled ‘The Constitution and Judicial Review’. At par. 22 it states: ‘The Acts of Judicature in the 1870s placed the courts on a statutory footing and combined the common law courts and courts of equity, thereby showing how Parliament could both define the jurisdiction of the courts and clarify the bounds of the Rule of Law’. At par. 25 it is adds that Parliament is ‘completely free’ to add or remove grounds of judicial review. At par 28 it concludes that the Government aims to ensure that the doctrine of the principle of legality is to be determined by politics, ‘with Parliament being the ultimate decision-maker as to how powers should be exercised’.

This theory is extraordinary in many respects. First, it is inevitably self-serving since if it is true, the government will find itself with enormous power to shape the country’s institutions. Second, it goes against the overwhelming consensus among constitutional lawyers in Europe and North America, where constitutional essentials are considered to be beyond the reach of simple political majorities. Third, and most importantly, this view flatly contradicts the current law.

It is worth spending some time on this point. The common law has moved on since Dicey. The United Kingdom courts have rejected the Victorian view time and time again. A unanimous Supreme Court said in 2019 that the United Kingdom ‘possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice’ and that it ‘includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles’. This means that the principles of the rule of law bind parliament just like just like any other ‘branch of government’ and the courts must ‘decide whether any exercise of power has transgressed those limits’ (Cherry/Miller (No 2) [2019] UKSC 41, [2020] AC 373, par. 39).

This was not a departure from precedent. The same principles informed, for example, the case concerning the ouster clause for the Investigatory Powers Tribunal (Privacy International [2019] UKSC 22) where Lord Carnwath explained that the courts had the responsibility to monitor if and how Parliament respects the ‘constitutional principle’ of the rule of law (par. 132). And the same idea was set out in detail in the complex case of the environmental assessment of the HS2 Rail project R (Buckinghamshire) v Secretary of State for Transport (HS2) [2014] UKSC 3; [2014] 1 WLR 324) where Lord Neuberger and Lord Mance (following John Laws’ innovative ideas about ‘constitutional statutes’) concluded that ‘the common law itself […] recognises certain principles as fundamental to the rule of law’ (par. 207).

A few years earlier, in R (Jackson) v Attorney General [2005] UKSC 56, [2006] 1 AC 262], Lord Steyn said that: ‘We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. […] The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom’. These ideas were at least implicit in Factortame thirty years ago.

One should not need to remind anyone of these famous cases. Yet, such reminder is necessary, because the government claims, erroneously, that the Constitution is fixed in 1870. These cases show otherwise. There should be nothing surprising about this. The common law evolves as judges, scholars and legislators, each in their own way, work out the best principles for each set of facts, one case at a time. As Sir Matthew Hale said more than three hundred years ago: ‘the common law does determine what of those customs are good and reasonable, and what unreasonable and void’ (Matthew Hale, The History of the Common Law 4^th ed. corrected by C Runnington (London: Strahan & Woodfall, 1779) 25).

The unwritten constitution is a living project of public deliberation, not an antiquarian discovery in ancient sources. And the current view is clear: the rule of law binds Parliament and not the other way round, for the sake of liberty for equal citizens. It may be that the government resents this principle. That may be so. But if it hopes to change it, its mission is not one of legal continuity but one of radical change.

The government agrees in general with the Panel’s view that further action should not be taken with respect to codification, justiciability and grounds of review, (paras. 44-45). It is, however, readily apparent from a reading of the Response that while the government agrees with the twin recommendations that emanated from the IRAL Panel, it wishes nonetheless to press further with reforms in a number of directions that will impact on judicial review. It is axiomatic that the government is not bound by anything that is decided by an independent panel. The reader is, nonetheless, left with the impression that the Ministry of Justice will proceed in the direction that it wishes through a further consultation over which it is in control.

To this end the Government Response sets in train a second consultation exercise. The range of questions posed in this consultation is far-reaching. This is not the place to engage in substantive comment on the questions that have been posed in this consultation mark II. The approach is premised on certain assumptions that run through the initial pages of the government response, which are concerned with the ‘Constitution and Judicial Review’. These include, as noted earlier, the assumption that a dominant feature of judicial review is that courts substitute their judgment for that of the primary decision-makers, (para. 2). The Response is grounded on a particular conception of the rule of law, espoused by Richard Ekins, (para. 26), which is in itself based on highly contestable assumptions concerning this concept, and equally contestable assumptions as to how judicial review operates. The Response is also premised on the view that the principle of legality has been pressed further than is warranted, (paras. 27-28). It is, moreover, predicated on the assumption that historical developments in administrative law are not ‘in any way indicative of how the courts and the Constitution “ought” to evolve in the future’, with the consequence being, inter alia, that Parliament is ‘completely free to add to or remove’ from the principles of judicial review in specific cases. (paras. 24-25).

This is not the place to engage in debate about the preceding assumptions, save to reiterate that I questioned one central hypothesis in an earlier blog. Suffice it to say the following in this context. The early pages of the Government Response consider judicial review and the constitution. The principal target is, in reality, alleged judicial over-reach in relation to review of discretionary power. What is missing is, however, any consideration as to why the courts engage in review of discretionary power, or the values served by such review. The answer may itself be contestable to some degree, but the question is central. There are three core values served by such review.

There is the need to ensure that the executive does not subvert the aims of the legislation, by using the delegated power in ways that are unreasonable: the object of a statute providing that employees who are injured at work may be given compensation, or shall be given due compensation, may be subverted if the compensation is rarely given, or if it is parsimonious.

There is the related, but distinct idea, that discretionary power should be subject to review to enhance and support the democratic process broadly conceived. Legislatures quite properly accord discretionary power to ministers, agencies and the like. The discretion is granted because not all aspects of the regulatory schema can be specified with exactitude in the enabling legislation. Judicial oversight can help to ensure reasoned administration, transparency as to the factors that shape the discretionary choices, and some substantive control over the choices thus made, as elaborated most recently in the work of Jerry Mashaw.

There is the idea that discretionary power should be controlled to ensure that it does not impose excessive burdens on those affected by it: if a statute empowers an agency to charge those who benefit from the work undertaken by the agency, then review is felt to be warranted to ensure that the burdens flowing from the work do not fall excessively on particular individuals, more especially when the beneficiaries of the work are a broader class of people.

The first and third of these values are exemplified by foundational case law. This duality is evident in Rooke’s Case ((1598) 5 Co. Rep) where the court concluded that the Commissioners’ of Sewers acted unlawfully, since the ‘commissioners ought to tax all who are in danger of being damaged by the not repairing equally, and not him who has the land next adjoining to the river only’(99b). The reasoning strikes a remarkably modern chord. If the charge could be levied solely on the owner with land nearest the river, this might defeat the purpose of the statute ‘for perhaps the rage and force of the water might be so great, that the value of the land adjoining will not serve to make the banks’(100a), and it thus followed that he who derived the benefit should share the burden (Qui sentit commodum sentire debet & onus).

It is therefore especially important to ensure that reform, whatsoever form it takes, is shaped by an understanding of the values that underpin judicial review. The preceding analysis is not premised on the assumption that the courts are the only mechanism for achieving these values. It is premised on the assumption that any change is conducted mindful of the values that underpin this area of judicial review.

To return to the specific inquires in consultation mark II: it is long, and the time to respond is correspondingly short. There are nineteen specific questions posed, and the time limit is 29^th April 2021. There is perforce no reason why a person or group should respond to all facets of this consultation exercise. The range of questions is, however, broad. Some are relatively specific, such as the inquiries concerning the modality for bringing about change in the Cart JR orders, and suspended quashing orders. Other questions raise difficult issues of principle, such as those concerning statutory instruments and ouster clauses. There is little over a month to respond to consultation mark II, and that is very short indeed. The government should consider revising this deadline. The fabric of judicial review has existed for over 400 hundred years. There is no reason for modification thereto to be subject to such tight time constraints.

The government summarises the point in the following way:

The Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made. The reasoning of decision makers has been replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament.

This will be centre stage in government initiatives going forward, as is evident from early political exchanges on the Report. It is, therefore, important to interrogate this suggestion closely. The reality is that statements to the effect that the courts have crossed the line between supervisory jurisdiction and merits review are conceptually flawed and politically charged in equal measure.

It is helpful to begin with a simple paradigm case: a statute provides that if an employee is injured at work then an agency may give compensation, or alternatively shall give due compensation. The ‘merits’ in this context connotes the decision whether to grant compensation, and if so how much. There are two errors in the preceding quotation and the academic reasoning on which it is based.

Firstly, judicial review has never ever been solely about the agency’s reasoning process. Central features of judicial review are indubitably substantive and have always been so. Consider the standard lexicon of doctrinal grounds for intervention. Judicial review for error of law, propriety of purpose and relevancy are substantive. So too is reasonableness review, as seen below. They circumscribe the decision that the agency can reach on the merits through, for example, judicial oversight as to the correct legal meaning of the term employee, or the purposes that can be served when deciding how to exercise the discretion.

Secondly, there is a line that demarcates the boundaries of legitimate judicial review, but it is not captured by a contradistinction between supervisory jurisdiction and merits review. The true position is as follows.

(a) It is not for the courts to substitute judgment on the merits. They should not replace their choice as to how the discretion ought to have been exercised for that of the administrative authority. They should not intervene, reassess the matter afresh and decide, for example that they would have awarded certain compensation to the employee, if they had been the primary decision-maker. Decisions as to political and social choice are made by the legislature, or a person assigned the task by the legislature. To sanction judicial intervention simply because the court would prefer a different choice to that of the administrator runs counter to this fundamental assumption, and would entail a re-allocation of power from the legislature and bureaucracy to the courts. This primary proposition is based on the separation of powers and accepted by pretty much everyone working in this area, academics and courts alike. UK courts do not substitute judgment, and are fully mindful of the limits of their legitimate role, as attested to in thousands of cases.

(b) However, it has also been accepted for circa 400 hundred years that there should be judicial control over discretionary determinations, which do not lead to substitution of judgment, or too great an intrusion on the merits. The salient point for present purposes is that the distinction between merits review and non-merits review is not helpful in this regard. The reason is readily apparent: all tests of substantive judicial review entail the judiciary in taking some view of the merits of the contested action, viz, in the preceding example whether compensation should be given and the amount thereof. This is so even in relation to the classic Wednesbury test. What distinguishes different tests for review is not whether they consider the merits or not, but the stringency of the judicial scrutiny. It is possible to range different tests for review along a spectrum. Classic, limited Wednesbury review is at one end of the spectrum, judicial substitution of judgment, whereby the court imposes what it believes to be the correct result lies at the opposite end of the spectrum. Various forms of heightened Wednesbury review occupy intermediate positions. In terms of case law, the reality is that the default position is low intensity Wednesbury review, whereby the courts accord very considerable leeway to the primary decision-maker when reviewing discretionary decisions.

(c) It is for this very reason that statements to the effect that a court in a particular case has crossed the line between legitimate supervisory jurisdiction and illegitimate merits review are conceptually flawed and politically charged in equal measure. When used by a commentator this statement in reality betokens a contestable value judgment as to how intensively the court should have reviewed the particular discretionary determination, which includes issues concerning the reasons that will be required to support the decision and the evidence backing up those reasons. The appropriate intensity of review may well be contentious, involve close inquiry as to the nature of the statutory scheme and the interests affected thereby. It is then tempting for a commentator to obviate this inquiry, and take the short cut through recourse to the dichotomy between supervisory jurisdiction and merits review, as if mere invocation thereof sufficed to accord their contestable, often unspoken, view as to the proper intensity of review in the instant case with canonical status. We should perforce engage in reasoned debate about whether the court deployed the appropriate intensity of review in a particular case. The answer is not, however, predetermined by a magic line between supervisory jurisdiction and merits review, and use of the divide merely reflects in a conclusory manner a prior substantive determination as to the proper intensity of review, adding nothing to that determination.

The IRAL Panel is refreshingly open and candid in its report. This is exemplified by the very first paragraph in which it notes the disquiet expressed in a number of submissions as to the breadth of its remit and the brevity of time given to complete it, to which the Panel responds that it ‘had some sympathy with this view’. The Panel’s candour is also evident in its statement that it chose not to revisit controversial cases in any detail, in part because such cases were not necessarily indicative of structural malaise in the system, and in part because Panel members did not, in any event, agree on whether the case was ‘right’ or ‘wrong’. The Panel’s openness is apparent yet again in its recognition of the political backdrop to the creation of IRAL, framed as it was by the two Brexit cases (para. 20).

The Panel generally came out against significant change in relation to the issues that it was asked to consider, with recommendations for only two limited reforms.

The first of these issues concerned codification. It considered two options in this respect, statement of general principle and a detailed list of the grounds of review. The Panel acknowledged that the former could have some benefits, in terms of stamping such principles with the approval of Parliament, while preserving the flexibility of the common law, but did not regard this as a real form of codification (para. 1.11). The Panel was sceptical as to the latter, more detailed specification of the grounds of review, in the light of experience in South Africa and Australia, noting that the detailed approach went both too far and not far enough, since it rendered it difficult for the law to be kept up to date, while at the same time presenting an aura of completeness that belied reality (para. 1.15). The Panel then considered four different codification approaches that might be used in the UK. It reasoned that any statutory formulation of judicial review would be interpreted as operating within the framework of the common law, and concluded, in line with the great preponderance of submissions, that on balance little significant advantage would be secured through codification (para. 1.43).

The Panel was also doubtful as to whether there could or should be changes in relation to the second issue, which concerned justiciability. It noted developments whereby the courts had eroded islands of non-justiciability, but rightly pushed back any suggestion that the Miller cases betokened the abolition of all remaining areas of non-justiciability, concluding that notwithstanding the constitutional importance of the cases, they were nonetheless unlikely to have wider ramifications, given the unique circumstances that generated the litigation (para. 2.37). The Panel addressed the foundations of non-justiciability, one being lack of knowledge and expertise, the other being separation of powers. It provided examples of instances where it thought that the court should have shown greater reticence on the former ground (para. 2.50), but these conclusions are contestable in relation to the cases cited, more especially given that relative expertise is taken into account when determining the intensity of review. The great majority of submissions were against legislative intervention in relation to justiciability (para. 2.58). The Panel concluded in similar vein for the following concatenation of reasons: cases raising serious constitutional issues were rare; individual problematic cases did not betoken a systemic problem; legislating in this area could be problematic; it could have negative consequences by freezing the law; non-justiciability clauses could be problematic under the Human Rights Act 1998; and the circumstances in the Miller litigation were unlikely to recur (paras. 2.68-2.79). The Panel, nonetheless, made clear that it was legitimate for Parliament to legislate on this issue if it wished to do so (para. 2.78), and duly considered the different forms that such legislation might take, distinguishing between non-justiciability provisions that were akin to an ouster clause, with all the problems thereby entailed, and those that were not, because the subject matter thereof had never been regarded as being susceptible to judicial review (paras. 2.80-2.89). The preceding reasoning was then embodied the Panel’s conclusions. It was against any general legislation which, under the guise of non-justiciability, sought to limit the remit of judicial review, noting that this was not warranted empirically, that it would be problematic from the perspective of constitutional principle and in the light of existing case law on ouster clauses. By way of counterpoise, the Panel accepted that it might be legitimate to ‘correct’ a justiciability determination in relation to a particular topic (paras. 2.94-2.101).

The Panel was equally sceptical concerning legislative intervention in relation to the third issue in the terms of reference, viz, whether there should be some statutory tailoring of the grounds of intervention and the subject matter of the case. It rightly concluded that the courts already do this to varying degrees, and that there would be very great difficulties in legislating in this regard (paras. 3.13-3.17). Such legislation would be likely to be complex and ineffective in equal measure. However, the Panel also counselled the importance of judicial restraint (paras. 3.23-3.24), and the need for some greater consideration of the category of constitutional rights (paras. 3.28-3.34). It did, moreover, recommend that what have become known as Cart JR applications should be stopped, given the number of such applications, the resource implications thereof and the very low incidence of success (para. 3.46). It also recommended that courts should be accorded the power to make a suspended quashing order, which would automatically take effect when certain conditions were met (paras. 3.49, 3.68). This is a valuable suggestion, and would improve the remedial flexibility presently available. This suggestion is supported by reasoning that is more complex than is necessary, predicated on the assumption that there is some fundamental tension with the nullity of invalid acts. This gives rise to some pretty curious reasoning, none more so than in paras. 3.61-3.64. The bottom line is that the courts have always had remedial discretion, and this has been exercised on the assumption that there has been an error that would justify invalidation of the contested measure.

The final limb of the terms of reference asked the Panel to consider a range of issues concerning procedure. The Report draws on valuable data concerning the incidence of review, and the volume of applications dealing with asylum and immigration. The evidence did not, said the Panel, suggest that unmeritorious claims were being allowed to proceed (para. 4.74). The Panel concluded against any change in the law relating to standing, while encouraging public bodies that felt that there was a problem in this regard to raise the issue before the court (paras. 4.99, 4.166-4.167). The Panel also concluded against any change in the time limits for bringing judicial review applications (paras. 4.149, 4.171). It recommended that criteria for intervenors should be developed by the Administrative Court (paras. 4.108, 4.168), and furnished helpful suggestions as to how the duty of candour could be further clarified (para. 4.131).

The final topic for consideration was judicial review in Scotland, Northern Ireland and Wales. The submissions were, without exception, opposed to, or at best not persuaded of, the need for further reform. There was also concern that any statutory intervention might result in a ‘dual’ or ‘two-tier’ system, in which ‘UK wide’ reserved or excepted matters and ‘other’ matters were treated differently. The Panel agreed that this would be highly undesirable (para. 5.50).

The preceding conclusions are drawn together in the overall conclusion to the Report (p. 131, para. 8). This is preceded by an observation to the effect that the Panel was nonetheless aware of the fact that there had been cases where the courts had exceeded a supervisory approach and imposed standards of scrutiny that exceed what is legitimate within a supervisory jurisdiction, p. 131, para. 7). This observation was, unsurprisingly, picked up by the government in its response, which will be considered in the accompanying blog.

Deference v Abdication

Deference is the idea of courts affording a modicum of respect to the primary decision-maker be it due to their superior expertise, democratic legitimacy, or the fact that parliament has entrusted them with making the decision in question.

Key to Begum’s case, was the question of judicial deference on questions of national security. The Supreme Court placed a heavy reliance on Lord Hoffmann’s judgment in SSHD v Rehman where he found that whether something is ‘in the interests’ of national security is not a question of law but of executive judgment and policy.

The reasons given by Lord Hoffmann and endorsed by the Supreme Court in Begum in favour of executive supremacy in areas of national security are that:

‘It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential consequences for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.’

The Supreme Court in Begum thus admonished the lower courts for ‘substituting its own view of the balance to be struck between national security and the applicant’s rights’ and not giving enough weight to the Secretary of State’s assessment. By prioritising the applicant’s rights over the public interest, Lord Reed invoked the no less than Eleanor Roosevelt as authoritative precedent:

‘As Eleanor Roosevelt famously said, justice cannot be for one side alone, but must be for both. It follows that an appeal should not be allowed merely because the appellant finds herself unable to present her appeal effectively: that would be unjust to the respondent’.

Ostensibly, the Supreme Court appears to be on firm constitutional ground. However, by deferring to the executive to such an extreme extent, the Court has failed to perform its own constitutional duty to uphold the rule of law and protect common law values like civil liberties. Such a function is notoriously hard to perform in the area of national security due to the difficulty courts have in scrutinising evidence in this area and their lack of democratic legitimacy. But this difficulty does not absolve the courts of their constitutional duty.

It is therefore the case that the Home Secretary may have acted unlawfully but this question cannot be conclusively answered until the case can be heard in full. However, the case cannot be heard in full until Begum is in a position to take part in proceedings. The Supreme Court may find comfort in the idea that it is only staying proceedings, leaving open the possibility that one day, Shamima Begum’s case may be heard in full. This possibility, however, is remote. What is completely absentfrom the judgment is that any acknowledgment that the ruling makes the Home Secretary’s decision de facto final. If justice must be for both, as Lord Reed alluded to when invoking Eleanor Roosevelt, then how is this just?

The Humpty Dumpty Supreme Court

In Liversidge v Anderson, Lord Atkin famously accused the majority of acting like a ‘Humpty Dumpty’ court, referring to Lewis Carroll’s Alice in Wonderland, because they interpreted words to mean what the court choose them to mean.

The Supreme Court’s invocation of Eleanor Roosevelt in Begum is befitting of a Humpty Dumpty court—deploying the principal architect of the Universal Declaration of Human Rights to deny an applicant fair trial rights in the interests of national security. Her words mean what the Supreme Court choose them to mean, neither more nor less.

The most generous reading of Begum is that the Supreme Court effectively washed its hands of a particularly contentious case at a time when the function of judicial review and oversight of the executive is firmly in the Government’s crosshairs. It is a judgment that strays close to the zone of non-justiciability while maintaining the façade of review and slim possibility of a successful appeal. Be it Humpty Dumpty or Pontius Plate, whatever metaphorical figure you pick, this is not deference; it is abdication.