Rule of law: Sumption reveals that Supreme Court intends to hold ministers to account

Rule of law: Sumption reveals that Supreme Court intends to hold ministers to account

At a speech at the London School of Economics this week, Lord Justice Sumption, the latest addition to the judiciary of the Supreme Court, said that he believes that the state will be held to account more often than it has done in the past.

Commentators are taking his assessment seriously: judges at Supreme Court level really do have an influence on the way the law develops in the United Kingdom.

His speech gives us the first idea of his political persuasions. He is one of the few judges in recent decades to have been appointed to the UK’s highest court without having previously held a full-time judicial post.

Analysing his speech, Joshua Rozenberg of the Guardian identifies some of his key political opinions. Sumption believes along with many others that the Iraq war lacked legal legitimacy, and he also appears to associate himself with ‘judicial revulsion’ at the American policy and methods employed against terror suspects at Guatanamo Bay, Cuba.

The remit of the courts to intervene in British foreign policy has been under discussion for many years. In the 1984 GCHQ case the majority of law lords decided that UK foreign policy was not susceptible to judicial review. Thus was born the principle of non-justiciability.

However, Lord Sumption’s view is that this principle has never been satisfactory.

Several cases over the past decade have demonstrated the willingness of the courts to look again at foreign policy, albeit cautiously.

The case of Al Rawi in 2006 showed that UK judges were prepared to be involved in the review of foreign policy decisions to protect the human rights of detainees at Guatanamo Bay.

Lord Sumption, in fact, represented the Government in the 2010 Binyam Mohamed case. The Court of Appeal there decided not to redact seven paragraphs which summarised intelligence material supplied in confidence by the US intelligence agencies: something which has prompted the Government to seek greater power to render sensitive information beyond the realms of open court.

However, Sumption also fired a word of warning.

“Courts (will not) allow the Human Rights Act to be used as a basis for challenging governmental decisions on major policy choices in foreign affairs,” he said in his speech.

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