Supreme Court judge on war, intelligence and the retreat of judicial deference
20 May 2012
The recent standoff between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.
Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.
Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance on judicial activism, particularly in the foreign policy sphere. I don’t agree. In his FA Mann Lecture last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light.
Sumption’s account of the growing emphasis in English public law on transparency and human rights and its impact on the confidentiality of communications and the secrecy of intelligence-gathering operations is studiously neutral. But it is not true that, as Rozenberg says, “there is nothing in it to suggest that he does not support the direction of travel.” When Sumption points out that an earlier generation of judges would have not entertained the question whether communications about intelligence between the American and British governments should be published, he is not proposing that government engages in wholly gratuitous suppression of information in this area:
the operations of government in the domain of foreign policy and intelligence-gathering, have aroused intense distrust and suspicion in the press…This distrust is not easy to dispel without compromising the confidentiality of communications with foreign governments and the secrecy that is bound to protect intelligence work if it is to be effective.
The distrust of the press is not a value in itself. Nevertheless it has gained traction in modern adjudication because of a number of factors, not only what Sumption calls the recent “passionate concern” for moral issues generated by foreign policy. The exponential growth of judicial review, accompanied by the great relaxation of the restrictions on standing, he says, necessarily exposes the courts to a great deal of litigation which is essentially politics by other means, opening up the government
to challenge in the courts by pressure groups, often concerned with a single issue, which have no interest in the process of accommodation between opposing interests and values that is fundamental to the ability of nations to live in peace.
Sumption compares the incremental promotion of press interest and pressure group litigation with the “much tighter standing rules” in the US, linking the latter with the fact that the US is now a far mightier power than this country, along with the robust immunity of the US executive’s foreign policy decisions from judicial scrutiny. It may be that courts in this country are no longer swept along by the same sorts of fears that beset us when we were a world power. The notion that the courts do not intervene in matters of relations between states was perhaps one that flourished when the stakes were higher. But by observing that the notion of non-justiciability is in retreat, Sumption does not advance any approval for the courts substituting their judgment for that of the political branches. The ragged jurisprudence of the Strasbourg Court is due to its periodic lack of inhibition in this area, since it is not beset by the specific constitutional checks and balances that restrain national courts. Sumption hardly celebrates the evolution of the “extra-territoriality” rule, which allows the Court to apply Convention rules to non-Convention jurisdictions in an increasing number of scenarios:
Al-Skeini and Al-Jedda were concerned with the impact of military operations on the particular complainants, although the application of the Convention to all territory where the United Kingdom is an occupying power will inevitably mean that policy decisions about the conduct of the occupation will fall to be reviewed in circumstances where they would not have been before.
He also comments upon another rule of deference that seems to be in retreat, the Foreign Act of State doctrine, which is based on the principle of comity that the courts of one country will not sit in judgment on the sovereign acts of another, even though they would be perfectly competent to do so if it was relevant. This doctrine, along with the non-justiciability theory, no longer exercises a restraining influence. Courts unhesitatingly pronounce on the legality or otherwise of foreign states’ actions – Abbasi v. Secretary of State for Foreign & Commonwealth Affairs  EWCA Civ 1598 (and see my posts on our judicial finger-wagging at other countries here and here).
Recent cases concerning defence powers have been based, not on the ambit of the “forbidden area” ( Marchiori v Environment Agency ), but on the notion that the government’s discretion in such matters is much wider (CND v Prime Minister ; or that courts should be reticent (rather than constitutionally forbidden) to intervene (R v Jones ). But judges are plucking stronger obligations out of the air: what the Court of Appeal called the force which seeks to press the courts into the area of UK’s foreign relations, and within it “to exercise a robust independent judgment”,
is the legal and ethical muscle of human rights and refugee status.(Al Rawi v Secretary of State for Foreign and Commonwealth Affairs  QB 289
Sumption stays scrupulously clear of any evaluation of this particular legal and ethical “muscle” and whether it should prevail over other arguably robust legal and ethical arguments, such as the need to maintain the secrecy of material supplied to the UK under intelligence cooperation arrangements (the issue at the centre of many recent cases, notably Binyam Mohammed v Secretary of State for Foreign and Commonwealth Affairs  QB 218). The obligation of confidence which the United Kingdom owes to the United States when it receives such material is noted, as is the enthusiasm of the courts to undermine it:
what is remarkable about the [Binyam] case is the palpable anger of the courts about the position in which they had been placed by the insistence of the Americans on maintaining a confidentiality to which they were certainly entitled under the Anglo- American intelligence cooperation arrangements, but which the English courts considered to have no purpose other than to suppress embarrassing facts.
It may be true that the judiciary cannot permanently thwart the objectives of government in its foreign operation, but it can certainly make a nuisance of itself, as it did here.
There is no suggestion of support for the direction of travel in this speech. What Sumption does is to acknowledge that the government’s power to withdraw certain classes of cases – and material – from the courts’ jurisdiction is so fraught with difficulty that even the widespread political reaction to unpopular human rights decisions will not restrain the courts’ readiness to intervene in the moral maze of foreign affairs.