Any list of ‘problematic’ cases is bound to be controversial.  There are several reasons why this is so.

First, as the editors acknowledge in their introductory essay, there are different ways in which cases might be problematic:

  • They may contain bold or unexpected doctrinal developments, particularly ones which extend the reach of judicial power (e.g., Van Gend en Loos and Costa v ENEL; Smith v MoD; Anisminic and Racal?) and which are not necessary to decide the case in hand (e.g., Jackson; AXA?);
  • They may give effect to a judicial policy in defiance of the intention of the legislature or treaty drafters (e.g., Rookes v Barnard; Evans; Clinton?);
  • They may be poorly reasoned (e.g., Rottmann; Vinter?);
  • They may produce doctrinal difficulties, particularly where the reasoning appears to be outcome-oriented rather than rule or principle-driven (e.g., Robinson; Pomiechowski; Fairchild?);
  • They may create excessive judicial discretion (e.g., Tyrer and Golder; Ghaidan v Godin-Mendoza?)
  • They may fail to respect the decision-making autonomy of other institutions, and the limits to the courts’ own institutional legitimacy (e.g., Purdy; Bradley; Nicklinson?);
  • They may provoke or exacerbate political controversy, in circumstances in which it might have been wiser (and possible) not to intervene (e.g., Roberts v Hopwood; Bromley; Hirst v UK?);
  • They may create significant practical problems, particularly in contexts in which the courts’ institutional competence to assess the impact of their decisions is limited (e.g., Hirsi Jamaa; Al-Skeini; Quila?); or
  • They may fail to discharge their proper judicial function, for instance by showing excessive deference to the executive or other courts, or by taking refuge in an overly-literal approach to statutory interpretation to avoid having to deal with difficult issues (e.g., Liversidge v Anderson; Pinnock?).

Secondly, it is, of course, a matter of judgment whether specific cases are problematic in these (or other) ways, and in particular whether they are more problematic than other cases which have not made the list.  For instance, are Jackson and AXA really more problematic than cases like Simms or Thoburn?  The former undoubtedly broke new constitutional ground in suggesting that the Rule of Law might trump legislative choices, but only in circumstances so extreme as to be practically irrelevant.  The latter made more incremental doctrinal changes, which are ostensibly more respectful of legislative intent, but in practice they give judges considerable freedom to determine the hierarchy of constitutional values in ways which have affected the outcome of concrete cases.  Similarly, does Norris v USA really deserve to be on the list?  Did the Supreme Court overstep the boundaries of judicial competence by departing from authority to insist upon the right of the courts to assess whether granting extradition would disproportionately interfere with Art 8?  Or was this an unexceptionable assertion of legal principle, the application of which suggests that it is really empty of any practical effect?  And if judicial discretion is a problem, why is Wednesbury – a case which is synonymous with possibly the most vacuous test in legal history – not on the list?  Is the Wednesbury test really less problematic than the proportionality test applied in a case like Huang, and if so why?

Clearly, cases can be problematic in certain respects, but not in others.  A third complication in compiling any list of problematic cases, then, is to decide which factors are most important.  This would appear to be a context-dependent judgment.  For example, in Cadder – a case which is not on the list, but might have been – the Supreme Court held that lack of a right of access to a solicitor for those held in police detention in Scotland (rather than being under arrest) was not compatible with Art 6.  This decision provoked extensive political controversy, had significant implications for the legal aid budget, and has had a ripple effect throughout the criminal justice system in Scotland, the final consequences of which are not yet clear.  However, the interpretation of the Convention adopted by the Supreme Court was a plausible, if perhaps not an inevitable one, thus arguably rendering the decision defensible.  Conversely, in another, initially surprising, omission from the list – Factortame – the novel assertion of a judicial power to ‘disapply’ an Act of the UK Parliament, contrary to domestic constitutional authority, and in a notoriously poorly-reasoned judgment, was in practical terms so unavoidable that, upon reflection, it scarcely seems problematic at all.

This points to a fourth complicating factor, which is that the boundaries of the judicial role do not stay still.  The cases which are included on the list suggest that judicial over-reach is a more significant problem than judicial under-reach; only one notorious example of excessive judicial restraint – Liversidge v Anderson – has been included.  Yet there are good reasons as well as bad ones why judicial power has expanded.  The much greater complexity of the contemporary constitutional order, and a more sophisticated and nuanced understanding of the conditions of legitimate governmental authority (including judicial authority), are in most cases a much more plausible explanation for increased judicialisation than a naked judicial power-grab.  Thus, many of the cases – particularly the human rights cases – which have been included on the list might more sympathetically be regarded as attempts by the courts to work out the boundaries of new constitutional jurisdictions which have been conferred upon them, which have by no means always erred in the direction of an expansive reading of judicial power (the restrictive approach to the meaning of public authority in s.6 of the Human Rights Act adopted in cases like YL and Marcic springs to mind).  In these circumstances, it may be difficult to separate out a judgment about the desirability of a particular jurisdiction from an assessment of the propriety of individual decisions in exercise of that jurisdiction.  Does the relative prominence of EU and human rights cases on the list, and the near absence of the key domestic cases extending the reach of judicial review of administrative action, indicate that European courts are more inclined to over-reach themselves, or does it simply suggest a conservative preference for the domestic constitutional order?

A fifth and final factor which is likely to lead to disagreement in the identification of problematic cases is the passage of time itself.  As with all lists of this nature, there is a notable bias towards recent events: 38 of the 50 cases have been decided since 2000, and 26 since 2010.  While it may be true that there are more problematic cases now than in the past, it is also likely, at least to some extent, that this reflects an availability heuristic.  In other words, we are simply more aware of the controversies surrounding contemporary cases, whilst developments that might have seemed novel and dangerous to previous generations have been absorbed into the legal order, and/or their problematic features eroded by time.  It would be interesting to repeat this exercise 20 or even 10 years hence to see how many entries in the current list survive.

There is, therefore, necessarily a large element of subjectivity in any list of problematic cases.  Nevertheless, the attempt to identify such cases is not merely an entertaining diversion, akin to the latest Buzzfeed listicle.  It is valuable to stimulate debate around concrete examples of inappropriate judicial decision-making, both because judicial power is largely self-limiting, and because the legitimate boundaries of the judicial role are determined at any particular time through community consensus.  This is a discussion which judges themselves ought to welcome because problematic cases are problematic not only for the violence they do to principles of democracy or the Rule of Law, but also because of their adverse impact on judges’ reputation for independence and impartiality.  Indeed, in relation to many of the older cases on the list, it is this reputational damage which has long outlasted any more concrete problematic effects.  Prudent judges should be attentive to the way in which their judgments are likely to be received, so as to be confident that they can be defended even if they are controversial.

At the same time, though, we need to be careful that a focus on the more egregious examples of problematic decision-making does not blind us to more quotidian instances of judicial power.  Given that the rising tide of judicial power is unlikely to be fully turned back, we need to pay attention to the broader conditions of judicial legitimacy in the contemporary constitutional order, which must encompass institutional relationships and questions of personal conduct as well as issues of jurisdictional reach and methods of adjudication.

Aileen McHarg
Professor Of Public Law
University of Strathclyde

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