Conor Gearty: UKSC reverts to legal formalist approach under Lord Reed
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Professor Gearty
Professor Conor Gearty, of LSE, has surveyed the jurisprudence of the Supreme Court under Lord Reed’s leadership, suggesting that it has “reverted to an approach rooted in legal formalism, an extremely narrow reading of the rule of law, while displaying an old-school lack of interest in the lived experiences of those whose plights have brought them to the judges’ attention”.
Of Lord Reed’s judgment rejecting the appeal of Shamima Begum, Professor Gearty writes that it is “almost impenetrably legalistic, with multiple appellate routes simultaneously identified, each with its own legal framework and entailing a different standard of review in the court called on to assess its legality”.
Professor Gearty adds that Lord Reed​ “has a very un-Scottish veneration of parliamentary sovereignty. This is the idea dreamed up to sanctify England’s 17th-century revolutions, and reworked when Scotland’s Parliament was absorbed within Westminster in 1707. The whole thing was given a sprinkling of academic stardust at the turn of the 20th century by that epitome of Englishness, the Oxford professor Albert Venn Dicey. There are still rumblings in Scotland that it is an English fix, but devolution has not been able to liberate the country from it, as Reed (once again with the agreement of all the other justices) demonstrated in a decision of 6 October 2021, denying that the Scottish Parliament had the power to incorporate into its domestic law international treaties to which the UK is a signatory where that would serve to undermine the sovereignty of the UK Parliament”.
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