How Shallow is the ‘Shallow End’? – UK Constitutional Law Association 

In a recent critical essay for the London Review of Books, Conor Gearty penned a wonderful, if provocative, account of the recent output of the UK Supreme Court, and attributed a substantial amount of influence to its President, Lord Reed. His “commitment to formalism”, said Gearty, has led to a series of decisions which shrink human rights protections, valorise the state and (especially) the government, and “insulate the decision-maker from judicial review” in all but the most extreme circumstances. The Supreme Court, he suggested, is in no danger of being out of its depth; Reed has marshalled the judges to the safe waters of “the shallow end”.

Gearty’s account was a scathing one. But there are others who have noted something similar about the direction of the Court, despite holding very different views about its merits. Former Lord Chancellor, Robert Buckland, spent a fair portion of a recent lecture criticising some judicial decisions for employing what he considered to be unwarranted judicial activism and political meddling. However, he paused to note that, in his view:

“the current Supreme Court, under Lord Reed’s leadership, has in the last year demonstrated the appropriate degree of restraint. It is essential that this continues and that we remain blessed with sensible judges like Lord Reed.”

His appraisal is clearly different to Gearty’s, but the distinctiveness of the jurisprudence produced by Reed’s court – and Reed himself – underpins both.

They are not the only ones. Last year, David Allen Green suggested that the Court may be “signalling the retreat” from its earlier position, towards one which typically applies less scrutiny to government decisions. Gabriel Tan, writing for the Edinburgh Law Review, considered that the UKSC’s recent jurisprudence reveals a “political constitutionalist turn”. Last October, in a piece for Prospect magazine, Alex Dean surveyed a number of commentators for their view on whether the UKSC judges have exhibited “a change of attitude” and “have reined in themselves”. Most said yes. Former UKSC Justice, Lord Brown, noted “some measure of retrenchment” in the Court’s recent jurisprudence; likewise, Jonathan Jones noted what he thought might be “a conservative constitutionalist view” running through it. Again, these trends were attributed to the judges themselves: an anonymous QC called Lord Reed (as well as Lord Sales) “pretty executive-minded and small-c conservative”. It may be unsurprising, then, to find that Lord Reed’s “disciplined” approach has seemingly won the approval of Richard Ekins, nominal head of the Judicial Power Project.

The common thread in these diagnoses is clear, and reflects something many public lawyers and court-watchers have felt for some time: whether framed as a good development or a bad one, the UKSC is now showing more restraint, greater respect for political actors, and is slower to second-guess the merits of policy choices: it is a less activist, more (small-c) conservative court than it was before.

But what evidence is there of this? Gearty’s qualitative account, for example, draws upon five important cases handed down by the Court during Reed’s time as President (Begum, SC, AB, UNCRC, Elan-Cane); the first two of these in particular have been frequently referenced more widely by others as indicators of a shift to judicial conservativism. Gearty is clearly right to argue that those cases evidence the judicial conservatism he criticises. But as he notes, the Reed court has handed down some 111 judgments in its first two years. Do the rest fit his description?

What follows is an empirical overview of the Reed court’s output so far, with a particular eye on public law cases. Is it an attempt – although, as acknowledged below, a fairly rudimentary one – to determine whether empirical evidence supports the claim of conservatism on the Reed Court, and whether those high-profile examples mentioned above are reflective of the Court’s general output.

How can the kind of judicial conservatism alluded to above be measured (at least in the public law context)? For the purposes of this blog post, I propose three candidates. The following are, of course, not intended to be exhaustive, or even particularly useful outside of the current context. They also have a narrow focus on case outcomes rather than on the underlying reasoning. Without intending to make claims as to the normativity of any position, I propose that judicial conservatism/restraint might be evidenced by:

1. A tendency to reject human rights claims, especially those lodged against public bodies. This is certainly a common complaint of the Judicial Power Project (its spiritual architect, John Finnis, does not think that “any” judicial finding that the UK has breached rights under the ECHR has been “correct”). This tendency may be evidenced in cases such as SC and Elan-Cane.

2. A tendency to side with public authorities rather than individuals, especially the central government, and especially in judicial review cases. This tendency may be evidenced in cases such as SC and Begum (which is, after all, not strictly a human rights case).

3. A tendency to uphold decisions of lower courts. This may evidence a reluctance to intervene in settled matters, and to avoid divergent evaluations on incommensurable questions relating to matters such as proportionality and reasonableness. This tendency may be evident in cases such as Ziegler.

This is not to say, of course, that any of the commentators mentioned above had any of these definitions in mind, nor that they ought to have done so. It is simply to provide one way of instrumentalising – perhaps operationalising – the essence of those claims, so that they can be looked at empirically. To do this, a dataset of all cases handed down by the UKSC in 2020 and 2021 was created, and each entry was coded in order to examine the three variables above. Again, it is acknowledged that this is only one way, and a very narrow way, by which judicial behaviour can be identified, but it is hoped that it can help shed some light on the wider question: how conservative is the Reed Court?

Rejecting human rights claims

Although Gearty is critical of the way the Supreme Court has handled some high-profile human rights claims, he also asserts that it “has reached some judgments strongly assertive of traditional civil liberties and others that insist on the importance of access to justice” (perhaps a reference to UNISON, a judgment authored by Reed in 2017). In practice, however, it is hard to find much evidence of this, at least insofar as “civil liberties” and “access to justice” translate into concrete human rights arguments.

In the relevant period, the UKSC handed down 25 cases which involved some distinct human rights claim (7 in 2020, 18 in 2021). 22 involved a public body; 3 concerned private parties. The vast majority involved the Human Rights Act or ECHR; just two cases involved human rights derived from the EU, and just one involved a discrete human rights claim derived from the common law. Of these 25 cases, just 4 were coded as ‘wins’, whereas 20 (some 80%) were coded as ‘losses’ (one case, a complicated appeal concerning the court’s jurisdiction to authorise a deprivation of liberty, involved human rights arguments on both sides and was difficult to categorise one way or another).

Those 4 successful cases in brief: MS (Pakistan) v Secretary of State was handed down in March 2020: the Court ruled that a Tribunal was right to hold that a potential trafficking victim should not be removed from the UK absent an assessment of their position in line with Article 4 ECHR. The judgment was written by Lady Hale (the case was heard (just) before she retired the Presidency). A month later, in AM (Zimbabwe) v Secretary of State, Lord Wilson clarified the law relating to extradition of terminally ill people; he found that Article 3 ECHR prevented the claimant’s deportation on the facts. In January 2021, a majority of the panel in DPP v Ziegler adopted a wide construction of the Highways Act in line with Article 11 ECHR and agreed with the trial judge’s application of the law to the facts. Finally, in May 2021, the Court handed down Kostal UK v Dunkley, concerning trade union rights and collective bargaining. The requirements of Article 11 ECHR heavily feature in Lord Leggatt’s lead judgment.

Lord Reed did not feature in any of the four cases above. Although he was not, of course, part of the bench in every unsuccessful human rights case, he did sit in 12 of the 20, was part of the majority in all of them, and authored the lead judgment in 5.

Just four concrete human rights successes in two years sounds fairly bleak from a rights-protection standpoint. But how different is this from previous years? As part of a larger project looking at judicial attitudes over time, I was able to put together comparative ‘human rights success rates’ for each calendar year going back to 2010. That rate differed from year to year; in 2010, it was as high as 61%. In 2013 and 2016, the success rate was 32%. The average figure for 2010-2019 comes to under 41%. By comparison, the UKSC upheld human rights arguments in just 28% of cases in 2020. In 2021, the figure was just 13%. This suggests that the Reed Court is indeed (significantly) less likely to favour human rights arguments than its predecessors.

Siding with public authorities

What about a tendency to side with public authorities? Whilst Gearty sensibly calls the idea that “appellate courts are invariably on the side of power” a “lazy” one (pace Griffith), there is a distinct impression on the part of commentators that Reed’s Court is strongly pro-state, pro-executive, pro-government. Does this bear out?

The UKSC handed down 67 cases which involved some kind of public body as a party across the period surveyed (32 in 2020, 35 in 2021); 29 cases involved a central government department (11 in 2020, 18 in 2021). 12 involved HMRC; 11 involved local authorities; 7 involved devolved institutions. Only cases where a public body acted as an actual party to the case, rather than, for example, as an intervener, were counted.

Public bodies were generally twice as likely to win a case than they were to lose one. Taken as a whole, public bodies won 41 cases and lost 22 (3 were marked as mixed verdicts). Central government departments won 18 cases and lost 9 (2 were marked as mixed). Interestingly enough, the government won just 3 out of 11 cases in 2020 (7 losses, 1 mixed result), but won an overwhelming number of cases in 2021 (15 wins, 2 losses, 1 mixed result). Only one single case was lost by a local authority party in all of  2020-2021. In that case, they were the second respondent, alongside a central government department.

Lord Reed’s own position in terms of siding with the state is somewhat more difficult to discern. Of the 22 cases in which the Court ruled against a public body, Lord Reed sat on 8, delivered the lead judgment in 2, and dissented in 1. Of the 41 cases in which the Court sided with a public body, Lord Reed sat on 21, delivered the lead judgment in 5, and dissented in 1. This means that of the 29 cases in which he sat, Lord Reed sided with the public body in 21 of them, and against them in 8– just over one quarter of cases.

Returning to the Court as a whole, how does its scoresheet compare to that of previous years? As with human rights success rates, the tendency of the Court to side with public authorities changes over time. At its highest, the Court found for public bodies in 62% of cases (in 2011, 2015 and 2016). At its lowest, it did so in just 44% of cases (in 2010). On average, the figure is 56%. The data for 2020 actually falls below average (at around 51%); by contrast, the data for 2021 swamps that of any previous year, as public bodies succeeded in around 74% of cases (this jumps to over 86% if only cases involving central government departments are considered).

There may therefore be some truth to the comment made by the anonymous QC, referenced above, that Reed’s court is indeed quite “executive-minded”.

Upholding lower court decisions

A tendency to uphold lower court decisions may not seem like an obvious manifestation of judicial conservatism, but it may signal a belief in a limited role for discretionary judgment in the law; it may underscore that judges are not to interfere or meddle; at minimum, it may enshrine the values of continuity, and a resistance to change. Indeed, in a number of recent cases, the UKSC was careful to limit the circumstances under which appellate courts should disturb findings of lower courts: see, e.g. DPP v Ziegler at [54] and Z v Hackney at [74].

However, it seems that this cautious tenor has not stemmed the UKSC’s own tendency to overturn lower court decisions. In 2020, 49% of appeals considered by the UKSC were allowed. Admittedly, in 2021, this figure dropped to 39%. But unlike with the two variables examined above, these ‘allow rates’ do not appear to differ significantly from those of previous years. The data gives a series of yearly ‘allow rate’ averages which range from 40% to 55%, with a mean of 48%. As such, whilst 2021’s ‘allow rate’ of 39% is indeed on the low end, it is not so radically different from that of previous years. 2020’s ‘allow rate’ of 49% actually falls above the average allow rate between 2009 and 2019.

If there is a conservatism to the Reed court, it does not really bite on whether appeals are allowed; its conservatism is more ideological in nature than a reflection of some desire for certainty and continuity.

What this data means

Whilst some of the summaries above are alarming (just 2 human rights cases out of 18 succeeding in 2021, both of which involved statutory interpretation, or the central government losing just two cases in the same year), the limits of empirical assessment should be borne in mind. Many important details are left out: why were the cases decided the way they were? What was argued, and conceded, by the parties? What position did lower courts take in each case? Speaking exclusively to numbers and percentages both ignores what is said (see, e.g. Charlotte O’Brien on the tenor of the UKSC’s judgment in SC) and what is not (see, e.g. Gearty’s observation that the “lived experiences” of vulnerable claimants barely feature in the Court’s reasoning).

Further, a focus on outcomes treats cases and their results as binary things; in reality, ‘wins’ are not always so clear: whilst the Court in Ziegler upheld the human rights arguments of the claimants, it also endorsed a very narrow view of when it is appropriate for an appellate judge to intervene in proportionality decisions. Similarly, ‘losses’ are not always total: whilst the Court in SC made short work of the human rights claims put before it, it did manage to salvage aspects of the seemingly unpalatable ‘manifestly without reasonable foundation’ test for proportionality (at least to the extent that it is no longer obviously out of step with the approach of the European Court of Human Rights).

Despite these limitations, the empirical evidence does seem to suggest that the Reed court is more conservative when it comes to public law – at least in terms of a tendency to reject human rights claims and to side with public authorities – than its predecessors. I noted above that Gearty’s account was a scathing one. It is suggested, taking into account the winners and losers of the court’s output over the last two years, that it is also an accurate one.

Lewis Graham, Law Society Fellow in Law, Wadham College, University of Oxford.

(Suggested citation: L. Graham, ‘The Reed Court by Numbers: How Shallow is the ‘Shallow End’?’, U.K. Const. L. Blog (4th April 2022) (available at https://ukconstitutionallaw.org/))