Lord Reed has denied that he feels ‘pressure’ from the government over judicial review or that the Supreme Court is showing ‘greater deference to the executive’ under his presidency.
Speaking at the Oxford Centre for Islamic Studies on Friday, Reed said: ‘The fact that politicians and government ministers and other politicians express concern means that we need to look at what we are doing and I think explain better what we are doing.’
But he added: ‘I don’t think myself there has been a change in our approach.’ He said a recent ruling on a challenge to the two-child limit for child tax credit ‘was designed to make it clear that we understand the limits of our role’.
Reed, giving the Supreme Court’s judgment in July, said cases alleging indirect discrimination against a certain group ‘present a risk of undue interference by the courts in the sphere of political choices’.
Leading public law silk Dinah Rose QC referred to suggestions the court has ‘retrenched and has, in more recent judgments, shown greater deference to the executive’ than under former president Lady Hale.
She asked: ‘Do you feel the pressure? Is the court retrenching? Is that a fair response to your recent judgments?’ Reed replied: ‘No, I don’t feel the pressure.’
‘When government has overstepped the limits of legality, we don’t mess about telling them about that,’ he said. ‘We have been very clear: if it is within their domain, we are saying we are not going to intervene because we recognise this is within your domain.
‘If they have overstepped the mark, we are saying get your tanks off our lawn. So it is clarity of communication really in response to expressions of concern.’
Reed – one of eight non-permanent UK judges on the Hong Kong Final Court of Appeal, including his deputy Lord Hodge – also addressed the role of overseas judges sitting on the court.
Overseas judges are able to give ‘practical support’ to the under-pressure local judiciary, he said, and their withdrawal would be ‘a matter of regret to the Chinese authorities, not to say loss of face’ – but it would ‘achieve nothing for Hong Kong’.
Reed said China’s crackdown on the right to protest means that ‘British judges have to think very carefully indeed about whether they can continue sitting there’.
He concluded: ‘I have discussions about this with government ministers … and we have taken the view so far that, on balance, the benefits of our continuing to sit there outweigh the risk to our reputation, which I realise we run and we keep it under review.
‘It has become more finely balanced, the assessment, as things have gone on and we will see how matters develop.’
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