The power of unelected judges – Part 1 of 2

30 May 2011 by

Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.

Starting with the Sharon Shoesmith decision, which has been helpfully summarised by Obiter J. The Spectator reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “recognises that Balls blundered in the way he dismissed her“,

he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.

Shoesmith was dismissed by Haringey Council following the fall-out over the Baby Peter case. The Court of Appeal overturned the decision of Mr Justice Foskett in the High Court to find that the sacking, a decision which had effectively been taken directly by the Secretary of State himself, had been procedurally unfair. Shoesmith had been “simply and summarily scapegoated“.

Judicial review is a means by which citizens can challenge the decisions of public bodies – for more, see my cut out and keep guide. It is very difficult to succeed, as it is not enough to show a decision was unreasonable; it has to have been irrational, illegal or procedurally unfair.

If the Spectator quote is correct, Gove may have in mind the decision of the High Court in February (see my post) that the cancellation of new school buildings in six areas was unlawful. A number of other decisions have been successfully challenged in the courts, including most recently the decision to withdraw funding for legal advice centres in Birmingham. This will undoubtedly be frustrating for those in central government attempting to implement the Coalition’s policy agenda.

Why is this decision particularly frustrating? Leaving aside the public money which will be spent paying Shoesmith’s considerable damages, the court is challenging a minister’s power to make a quick decision – in this case, to sack a senior public servant – in respect of a matter of great public importance. The court made a strong statement that executive power would not go unchecked, even in matters where the public wanted urgent action. Lord Justice Maurice Kay accepted that “the context – the protection of vulnerable children – is important and, together with a degree of urgency may impact on the requirement of procedural fairness“. However, on the other hand

Ms Shoesmith was the holder of a statutory office who was very highly thought of in Haringey… and the Secretary of State must have realised that his decisions would be likely to have catastrophic consequences for her.

And, just because “as a matter of policy one individual with ultimate responsibility and accountability in relation to children’s services” does not mean that “that person is to be denied the protections that have long been accorded to responsible and accountable office-holders.” The strongest statement of principle came in paragraph 66:

I find it a deeply unattractive proposition that the mere juxtaposition of a state of affairs and a person who is “accountable” should mean that there is nothing that that person might say which could conceivably explain, excuse or mitigate her predicament. “Accountability” is not synonymous with “Heads must roll”

It is not hard to see why this statement might frustrate a minister. It is unusual to hear a current minister defending his predecessor’s decision, but Gove would probably like to think in a child protection scandal involving significant public pressure for urgent action, he would be relatively free to act.

However, the court was not challenging the secretary of state’s power to remove a public official from their role, but rather the power to do it summarily and without sufficient consideration. As the court pointed out, all that would have been required to comply with fairness requirements would have been a short delay.

Legal blogger Obiter J has posted on the issue and argues:

It seems that the present government is concerned to restrict judicial review. Here we are in dangerous territory. Surely, the most important constitutional point is that Ministers must act in accordance with law.

If the case does reach the supreme court, it seems unlikely that the court will curtail its own powers to challenge executive decisions. However, it is also possible that by that time the matter will be less about constitutional principle and more narrowly about the procedural requirements under the Education Act 1996.

Part 2 of this post can be read here

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  1. Libertarian says:

    “being used repeatedly by opponents of the government to try and [sic: try “to”!] stymie its agenda.”

    Since the House of Lords is a mere emasculated rump of placemen with neither a pair of testicles nor a set of teeth to share between them, surely the judiciary is the only route open to curb the arbitrary despotism of the mono-cameral rubber stamp which the House of Commons is rapidly becoming?

  2. ObiterJ says:

    Thank you for the links.

    Mr Gove has no need to worry about the ability to act should – (and we hope not) – that a similar case occurs. His powers are adequate but all he has to do is exercise some basic fairness.

    Ofsted came out of the judicial review in the clear but, in my opinion, they should have a think about how they would go about things in any similar future urgent review. Perhaps they have done this already. Their press release about the Court of Appeal decision is at:

  3. Mr BD says:

    There are many poeple who “like to think in a child protection scandal involving significant public pressure for urgent action, [the judiciary] would be relatively [willing] to act.”

    “It seems that the present [judiciary] is concerned to restrict [an urgently required reassessment of Relocation law]. Here we are in dangerous territory. Surely, the most important point is that [the judiciary] must act in accordance with law,” [namely the Children Act 1989, and serve the paramount interests of the child by giving due weight and consideration to contemporary scientific child welfare research, as well as to gender-neutral dynamics of modern family life which are unrecognisable to those of the 1970s].

    Parliamentarians are accountable for their actions, omissions and errors. And rightly so.

    The judiciary, on the other hand, are not.

    For those of us who believe that judges are capable of making mistakes, such unaccountability is scandalous.

    For those who believe that judges are simply incapable of erring, the situation is perfectly acceptable.

    Mr BD

    1. Lloyd Jenkins says:


      How about those of us who are aware that the judicial errors can be resolved through the democratic process (i.e. legislation) and are also aware that electing a judge is incompatible with judicial independence? Do we get a say, or is your view of the debate entirely between two equally ridiculous viewpoints?

      1. Mr BD says:

        Hello Mr Jenkins.

        Of course, everyone gets a say! That seems quite obvious, and I don’t really know why you ask this question.

        I’m glad that you seem to accept the point that judges are capable of making errors.

        The difficulty I have with your response is that there already exists “good” legislation regarding Relocation law. Parliament’s Children Act 1989 clearly instructs the judiciary to serve the paramount interests of the child.

        Lord McNally of the Ministry of Justice has advised me that the judiciary has the power to interpret that law in whatever way it wishes, to apply whatever principles and suppositions it wishes, to rely on whatever legal precedents it wishes (Poel) and to consider (or ignore) whatever scientific evidence it wishes.

        Power, therefore, would seem to rest with the judiciary. If they abuse that power, Parliament seems powerless to act.

        There appears to be no mechanism for the judiciary to rectify its own mistakes swiftly. Their hands seem tied by their own judgments: for example Sir Nicholas Wall cannot go against the suppositions in Payne v Payne 2001. He is bound by them. In no other profession would a President be so powerless to rectify the position of his organisation, in the face of such “compelling” and “powerful” evidence. (Wall’s adjectives).

        My view is that this situation is shameful. What is your view?

        Mr BD

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