Since Lady Hale’s retirement in early 2020 and her replacement as president by Lord Reed, the UK Supreme Court has become more moderate. This is, at least, the prevailing view among some legal commentators and court observers.

In a scathing essay in the London Review of Books, Conor Gearty diagnosed the Court as having a moderate disposition and “a commitment to formalism”;1 elsewhere Adam Tomkins has noted a “conservative turn”2 in the Court’s recent jurisprudence; Jonathan Jones has suggested that there is evidence that the Court’s judges hold a “conservative constitutionalist view”3 and Brice Dickson has identified “a more moderate approach” evident in the Court’s judgments compared with “just a few years ago”.4 Of course, not all assessments are so critical. Richard Ekins of the Judicial Power Project has noted with approval the Court’s recent “more disciplined approach”,5 which he sees as “a reaction against the judicial activism” advocated by previous incarnations of the Court.6 Former Chancellor Robert Buckland has praised the Court’s recent “sensible” approach, with the judges, in his view, exercising an “appropriate degree of restraint”.7 Many more examples could be pointed to, with some commenting clearly in favour of the direction the Court has taken and others much less enthusiastic about it.8

It is not only academics who have commented on these issues. Among those who have also recognised the Court’s tendency towards more moderate jurisprudence are former Supreme Court judges Lord Brown,9 Lord Sumption10 and Lady Hale11. MPs have also taken note: a 2022 Report from the All-Party Parliamentary Group on Democracy and the Constitution acknowledged that the Court’s recent judgments create the impression of a Court that is “more executive-friendly”12 than it was before.

Of course, the judges sitting on the Court can say very little about this. One of the few glimpses behind the curtain came from Lord Reed, speaking to the House of Lords Constitution Committee in 2022. There, he suggested that “the idea that we have been soft on the government or that we are reluctant to rule against the government is completely unfounded.” However, he noted that “what has been perhaps most evident in our judgments is a greater respect for the separation of powers” ​​and, as a judge, he has “made an effort in judgments in recent years … to explain what the constitutional relationships [between the legislature, executive and judiciary] are.” 13 Unsurprisingly, this is one of the more oblique statements a sitting UK Supreme Court judge has made about the Court’s apparent trend towards greater moderation. That’s probably sensible.There may be divergent views on whether a conservative turn by the Court is a positive or negative development. However, this article is primarily concerned with whether there is actual evidence that such a development has occurred and, if so, how a more conservative and “narrow” jurisprudential approach manifests itself in practice. The questions of whether this is desirable and what its immediate causes may be are of vital importance, but they cannot be adequately addressed before answering the prior question of whether the Court has in fact become more narrow and what kind of conservatism it may be adopting.

WHAT ‘RESTRAINED’ MEANS

It is important, at the outset, to clarify what is meant by a “moderate” attitude. The closest synonym would probably be “conservative,” although, to be clear, my invocation of this term is not intended to capture any ideological or partisan dimension. I am primarily interested in judicial restraint in the sense of advocating caution and moderation, with a preference for certainty and consistency, and perhaps a moderate resistance to change. This definition of legal restraint encompasses both formal and more substantive measures. Procedural restraint, for example, may involve strictly adhering to precedent or deferring to lower courts or those that made prior decisions. More substantive definitions may focus on the way the law is developed, the outcomes of cases, and which parties tend to win. Some indicators of restraint, such as deferring to executive decision-makers and exercising caution when it comes to judicial discretion, may not fit neatly into either category. A decision may well be described as moderate in one respect, but not in another. Much depends on the case and the particular categorical perspective adopted in each case.

Rather than focusing on one of these singular dimensions, this article will examine a variety of ways in which judicial restraint can be defined and manifested, without committing to any of them at all. Each is detailed below. They were all selected because of their particular relevance in the present context (to the UK legal system in general and to the UK Supreme Court in particular) and because they are relatively uncontroversial for the most part. The dimensions examined are applicable to public law cases, which, for reasons developed below, will be the main focus of this article. They are also, as far as possible, identifiable and measurable: my aim here is to examine the Court’s output to identify trends. There are undoubtedly many important markers of judicial restraint not addressed in this article, but since they cannot be easily measured or operationalized in the present study, their examination must wait for another day.

Applying these filtering criteria, ten potential manifestations of judicial restraint have been identified for examination. Some articles focus on relevant constitutional relations (the Court’s relationship to the legislature, the executive, and lower courts, respectively, as well as its approach to international rather than domestic law). Others analyze the Court’s approach to the existence and breadth of its own jurisdiction. Still others analyze issues that arise in the Court’s legal reasoning, both in terms of particular tools used (statutory interpretation and precedent) and more general considerations (the role of politics and the exercise of judicial discretion). Finally, given its ubiquity as a thematic area, the Court’s approach to human rights claims will also be examined as a discrete exercise,14 in particular as a venue for bringing together the application of other factors examined within a particular thematic framework. It may be more fruitful to examine first those areas where a clearly restricted approach can be detected, before moving on to those areas where there is less evidence of it. This will help to identify what kind of restriction is being promoted by the Court as a whole, which is addressed throughout the article and again in the conclusion.

First, the relations between the judiciary and the legislature will be examined; the relations between the judiciary and the executive; the domestic treatment of European and international law; the judicial approach to human rights; and the role of law and order in legal decision-making. In relation to each of these issues, a moderate approach can be detected in the Court’s jurisprudence.

There is less evidence that the Court takes a moderate approach in respect of the following, which will be examined in the second half of this article: the approach of the appellate courts to lower court decisions; the approach of the UKSC to its own jurisdiction; the preferred approach to statutory interpretation; the preferred approach to precedent and the role of legal certainty in legal decision-making.

It is hoped that these categories may act as useful candidates for measuring judicial moderation and conservatism. They will be examined, in turn, with respect to the Court’s output from 2020 (broadly speaking, when the Court’s Presidency changed, and roughly coinciding with a number of significant retirements and new appointments to the Court) up to a cut-off point of January 2023. The categories chosen are neither absolute nor exhaustive.15 It is hoped that, even if the reader does not find a particular conceptualisation of moderation compelling in this regard, he or she may at least find the trends uncovered and explained in each section interesting on their own.

As noted, this article is primarily concerned with uncovering the judicial approach to public law cases. There are a few reasons for this. In general, public law cases tend to involve more explicit consideration of the kinds of issues that provide particularly apt sites for the examination of judicial conservatism and moderation (for example, issues relating to the separation of powers, the limits of executive discretion, and the contours of common law doctrine, all of which are integral to public law jurisprudence, all translate fairly directly into the indicators of a moderate approach identified above). 16 Judicial review and human rights are two fields in which, as has long been recognized, judges have particular power and exercise significant discretion. 17 Public law cases, in general, tend to be more controversial than private law cases, and political actors are more sensitive to these decisions. None of this is to say that private law cases are inherently less ideological than public law cases, that they are uncontroversial, or that they are less likely to evidence, or be affected by, changing approaches to judicial restraint.18 But for the present article, where practical matters require that some cases be relegated in favour of others, there are good reasons for choosing public law cases as the primary focus of the study.

A LESS RESTRAINED APPROACH?

In short, it has been argued that there is evidence in the Court’s recent jurisprudence of a kind of judicial restraint, insofar as the term can be used to describe an approach that is deferential to the executive and the legislature, promotes a strongly dualistic conception of the national constitution, takes a narrow approach to human rights claims, and limits the role of public policy in judicial reasoning. The following section examines other ways in which judicial restraint might be understood to manifest itself, but where there is no real evidence that the Court engages in moderate behaviour across the board in practice.

Relationship with lower courts

A possible indicator of restrained conduct may be the tendency to uphold existing decisions and a reluctance to reopen and intervene in disputes that have already been resolved by a judicial body, in order to respect the values ​​of finality and certainty. 140 of the 146 cases handed down by the Court during the period under review were appeals from lower courts. Overall, appeals were allowed in 43.6 per cent of cases.174 This figure is somewhat low, but it is within the range of the Court’s success rate of 40 to 55 per cent in a given year.175 The figures, as always, tell only a partial story; it is perhaps more useful that the Court has set out guidance on the standards to be applied when considering appeals in various contexts. It has been repeatedly emphasised that the tribunal or court deciding the issues at first instance should be regarded as having “primary responsibility”176 for determining the facts and the law, not only because it is generally best placed to gather and consider the relevant evidence177 but, especially in the case of specialist courts, it is likely to display a particular degree of expertise.178 An appropriate degree of deference is therefore required and, in ordinary circumstances, an appellate court should only alter the findings of a trial judge if there is a clear error of law in his judgment.179 Even then, appellate courts should not be overly eager to correct minor errors (especially at Supreme Court level, where a case is likely to have already been determined by at least one appellate court) and should presume that lower courts have always acted in good faith. In HA (Iraq) v Secretary of State for the Home Department (HA), for example, the Court warned that “where a court fails to expressly mention a relevant point, the [appellate] court must be slow to infer that it has not been taken into account” and that it “must not assume that the court was wrong simply because every step of its reasoning was not fully set out.”180 The Court has drawn a distinction between a defective or imperfect judgment and an “incorrect” one: appellate courts should only interfere in the latter category of cases.181 That said, these standards merely emphasize the inherent limitations of the appellate role, and the Court has not shied away from correcting the trial court where such errors were clearly made,182 and in one case it rightly criticized, in very strong terms, a trial judge for his “barrage of hostility towards the plaintiff’s case and towards the plaintiff himself … in an intemperate, ill-tempered and sometimes offensive tone.”183 183

The particular role of the Court of Appeal has also developed; it has primary responsibility, for example, for setting a guideline on costs, which should not be questioned on appeal outside of exceptional circumstances.184 The same is true of the Northern Ireland Court of Appeal in respect of sentencing issues,185 and there is no reason to think that the same should not apply in respect of the Court of Appeal in England and Wales. However, as with the first-instance courts, the Supreme Court has been willing to intervene where the Court of Appeal has made clear errors of law,186 especially where it failed to respect the limits of its own appellate role by, for example, engaging in primary fact-finding or making new decisions.187

In several decisions issued during this period, the Court was confronted with the deceptively complicated question of what should be the proper standard for an appellate court to apply when considering a lower court’s assessment of proportionality. In Z, the Court emphasized that in such a case, an appellate court’s role is limited to assessing whether the lower court was entitled to reach the conclusion it did. 188 Similarly, in HW, the Court described the appellate court’s job as conducting a “review” rather than a “rehearing” of the proportionality issue. 189 The Ziegler case saw the Court divided as to the correct standard to apply when reviewing proportionality in the context of statement of case appeals. The majority held that an appellate court should treat the assessment of an error in the proportionality balancing exercise in a similar way to that applicable to any other factual determination, and intervene only where the lower court’s conclusion was not “reasonably open to it” or where it was “irrational or perverse.”190 The minority preferred a broader approach whereby intervention can occur if the lower court’s conduct of the proportionality exercise was wrong.191 The most recent authority on the issue at the time of writing, and one that indicates something of a change of direction on this issue, is the Reference to the Abortion Services (Safe Access Zones) Bill.192 In that case, the Court unanimously rejected the narrower approach to appeals by way of statement of the case that was endorsed by the majority in Ziegler193 and suggested that in all appellate cases (statement of the case or otherwise) the reviewing court has a duty to ensure that the legal rights, including those of the HRA, are upheld. 1998, are protected.194 When considering a lesser declaration, the reviewing court has a duty to ensure that legal rights, including those under the 1998 HRA, are protected.194 When considering a lesser declaration, the reviewing court has a duty to ensure that legal rights, including those under the 1998 HRA, are protected.195 As to a court’s determination of proportionality (at least when it comes to the compatibility of a general measure),195 the Court should take an “interventionist” approach,196 requiring it to “conduct its own assessment” and “not give any deference to the assessment of proportionality by lower courts.”197 Whether this aligns current law with the minority view in Ziegler or forces an even more demanding standard of review is somewhat ambiguous, but it is clear that the narrow approach to proportionality review that seemed to command majority support until very recently is no longer good law. The case law therefore reveals a mixed picture as regards the prevailing attitude towards lower courts. It is suggested that, while the Court is often keen to emphasise the importance of respecting lower courts, the Re Abortion Services judgment shows that the Court will be comfortable with reviewing and correcting errors of law, including incorrect proportionality assessments, where appropriate. If the Court can therefore be said to be restrained, this is not due to a systematically deferential attitude towards lower courts.

Jurisdiction

The next step is the Court’s approach to jurisdictional issues: first, those that are specific to the Supreme Court itself, and second, those that concern courts in general. A moderate approach in this regard could lead the Court to limit its own jurisdiction and leave disputes to other bodies to resolve, or to reduce the overall scope of judicial oversight of disputed issues.

While, as mentioned above, the Court has identified certain areas in which it will have only very limited jurisdiction to intervene in matters (namely, relating to judgments and costs) dealt with conclusively by the Court of Appeal,198 it has otherwise been quite reluctant to limit its own jurisdiction: it accepted, for example, that it could consider an appeal on a point that was before the High Court but not before the Court of Appeal,199 and that it could (and did) decide on a remand reference made under paragraph 34 of the Scotland Act 1998.200 Perhaps most notably, it accepted that it has jurisdiction to hear an appeal against its own earlier finding that a claimant was in contempt of court for failing to adhere to a judgment attachment.201

While not without exception,202 it has taken a similarly generous approach when it comes to issues relating to the jurisdiction of courts generally. For example, it recognised that on the facts of the case there was jurisdiction to intervene in a trust in Lehtimäki v Cooper203 and to determine patent issues in Unwired Planet International v Huawei Technologies;204 it applied a flexible approach as to whether a maintenance claim should be brought in an English or Scottish court in Villiers v Villiers;205 and on two occasions where it was in dispute whether a particular claim should be brought in the UK or another jurisdiction, the Court held that the matter should be determined in English courts.206 The Court was more likely to find that it lacked jurisdiction to determine an issue where the issue had been separately covered by some statutory framework,207 but even in such a case the Court would often find that its inherent jurisdiction remained active alongside, or in addition to, the relevant statutory controls.208

An important example of a case where, contrary to the prevailing trend, the Court expressly restricted its own jurisdiction is Begum.209 The case concerned the routes available to challenge a decision to deprive a person of his or her citizenship,210 where national security issues require at least a partially closed hearing under the Special Immigration Appeals Commission Act 1997. That statute provides that a deprivation decision may be subject to appeal or review.211 Despite recognizing the difference between the nature of appeal and review,212 the Court authorized the application of a standard to be applied when an appeal was being heard that appeared “largely the same” as that applicable when a mere review was being heard;213 courts were cautioned not to assess the merits or correctness of the decision themselves, but to limit themselves to reviewing the decision on the basis of standard administrative law grounds.214 The Court thus endorsed215 a significantly narrower conception of the applicable judicial role than had been adopted by the Court of Appeal (which interpreted the relevant provisions as which provided for “appeals on full merit”)216 and that which had been established in previous jurisprudence.217

Begum suggests that, where questions of the Court’s jurisdiction overlapped with questions of the exercise of public power, the Court’s preference for expanding its jurisdiction gave way to its tendency to defer it to the executive. However, this does not detract from the position that, on balance, rather than adopting a conservative approach to its own jurisdiction, the Court’s tendency during this period was in fact to recognise and exercise it. Its approach was not characterised by moderation on the whole.