The publication of the final report of the public inquiry into Alexander Litvinenko’s death has provoked much comment, but lost sight of in all of this debate is the role of the courts in bringing about the inquiry in the first place. It might be thought odd that the courts had a significant hand in setting up a public inquiry, which is a quintessentially governmental matter, especially in such a politically charged context involving considerations of foreign relations. Yet as judicial power has increased the courts have become increasingly active in regulating ordinary political matters. As a result the line between law and ordinary politics has become increasingly difficult to discern. The publication of Sir Robert Owen’s report provides an opportunity for reflection upon the legal background to the Litvinenko inquiry. It reveals a clear instance of judicial overreach into the very heart of governmental decision-making.

I note that in this post my concern is not with whether the decision to hold a public inquiry was the right decision or not, but with the legitimacy of the courts’ intervention in the political decision-making process.

Alexander Litvinenko died in London in 2006. The likely cause of death was ingestion of radioactive material. Following a thorough police inquiry prosecutors determined there was sufficient evidence to charge two Russian nationals with murder.  However, Russia would not extradite the suspects. Once it was clear criminal proceedings would not eventuate, the coroner began an inquest. He determined provisionally that his inquiry would include the possible culpability of the Russian state for Litvinenko’s death; this determination relied on the view of counsel to the inquest, provisionally endorsed by the coroner, that UK Government documents established a prima facie case of Russian culpability. However, these documents were subsequently excluded from the inquest according to public interest immunity. There being no provision for closed hearings in an inquest, the coroner determined the state culpability issue would inevitably be excluded from the inquest.

The coroner wrote to the Lord Chancellor requesting that a statutory inquiry be established. He emphasised the power of inquiries to hold private hearings, which could be utilised to consider documents relevant to state culpability. In other words a public inquiry should be initiated so inquiries could be conducted in private. By return letter the Home Secretary advised an inquiry would not be established, although the matter would be kept under review; in the meantime the inquest would continue. The Minister’s letter identified factors favouring an inquiry, such as the coroner’s informed view that one should be held and the power to consider sensitive material in private. The letter also identified factors against. These were fully reasoned and included that whether a public inquiry should be established is best judged at the conclusion of the inquest, that the material excluded from the inquest would not be made public through an inquiry anyway, cost, and concerns of international relations.

In R(Litvinenko) v Home Secretary (2014), Litvinenko’s widow sought judicial review of the Minister’s refusal to initiate a public inquiry. The central challenge was to the substance of the Minister’s reasons against holding an inquiry.

The courts’ traditional approach to reviewing the substance of executive decisions has been one characterised by studied restraint, consonant with the orthodox conception of judicial review as a secondary, supervisory jurisdiction, with courts only intervening if the decision and/or reasons were at the outer edges of acceptability. The Wednesbury standard has long stood as a totem of non-intervention: a court may only intervene where the executive decision was one so unreasonable that no reasonable decision-maker could have made it. The reasons for this approach are axiomatic. First, Parliament has bestowed the decision-maker with authority to decide, not the courts. Second, calculations as to what lies in the public interest are legitimately made by those who are elected, or who are accountable to elected officials and Parliament. Third, deciding what action lies in the public interest typically requires specialist expertise or access to relevant information, which the administration possesses. Courts on the other hand lack legitimacy to make broad value-judgements as to the public interest, and have no training and limited expertise in public policy. Furthermore, if courts do not discipline their interventions, too readily entering the substance of executive decision-making, they may become embroiled in ordinary politics, ultimately undermining their own legitimacy.

In contrast to this traditional approach the Court in Litvinenko pored over the Minister’s reasons against holding an inquiry, having little hesitation in quashing the decision. Various factors relied on by the Minister were dismissed in the following terms: “The proposition … is … in my view a bad one”; “I have found the Secretary of State’s reasoning difficult to accept”; the reasoning “fails to address the thrust of the Coroner’s concerns”; and “[the Minister] will need better reasons”. These statements do not suggest a Minister taking leave of her senses or a manifest abuse of power. Rather they indicate the Court merely disagreed with or was not itself convinced by the Minister’s reasoning. Crucially, the Court never directed itself as to the appropriate approach to review. However, the Court’s general approach was laid bare in its conclusion: “I have upheld the claimant’s challenge to the adequacy or correctness of the … reasons given by the Secretary”. This is not exercise of a long-stop, supervisory jurisdiction geared to catching clear abuses of power. Rather, this approach entails the court standing in the Minister’s shoes, deciding which reasons are “correct”.

This would be impermissible even in common law review challenges concerning basic rights, where the most intensive, “anxious scrutiny” variant of Wednesbury is deployed. In some contexts, such as claims under the Human Rights Act 1998, the courts exercise determinative judgment as to whether a right has been violated, while still affording due respect to the primary decision-maker’s reasoning, but that is because these claims involve statutorily-enacted legal rights, and adjudication of legal rights is the province of the judiciary. However, there are no rights in play here: “No one is entitled to a public inquiry” (Persey v Secretary of State for Environment (2002)).

Far from calling for intensive review, the statutory context supports a very high threshold for judicial intervention. The Minister made her decision under s1 of the Inquiries Act 2005 which states that the Minister “may” initiate an inquiry where “it appears to him” that “there is public concern that particular events may have occurred”. Whether events give rise to a public concern such that an inquiry is warranted is the sort of open-ended question on which reasonable people will naturally disagree, which in turn tells against courts readily intervening because they simply take a different view: “it is not enough if a judge feels able to say, like a juror or like a dissenting member of the Cabinet or fellow-councillor, ‘I think that is unreasonable; that is not what I would have done’ ” (R v SOSHD, ex p Brind (1991)). Under the Act, whether an inquiry should be held rests on the Minister’s subjective view. This further tells against any court imposing its own view of what sort of reasoning is permissible, as does the complete absence of any express constraints on the discretion. The Minister’s discretion is a wide one and it is clear that for “wide powers, the scope for applying irrationality … is correspondingly limited” (AXA General Insurance Ltd v HM Advocate (2012)).

Parliament intended the relevant Minister to have ultimate responsibility for and maximal control over core decisions in respect of inquiries. This is evidenced by the Act’s significant features: it is for the Minister to set and amend the terms of any inquiry; appoint members of the panel and dismiss them; inform Parliament of establishment of an inquiry; and suspend or terminate the inquiry. The final report is delivered to the Minister. In other words, the Act makes clear that decision-making over inquiries is quintessentially the preserve of government. It is therefore difficult to see how it could ever be permissible for a court to quash a Ministerial decision to hold an inquiry on the basis that the court was not itself convinced by the Minister’s reasons; in principle, review of a refusal to hold an inquiry should be approached no differently.

The Court did observe the “very broad” nature of the discretion, and that the decision whether to hold an inquiry is “difficult and nuanced”. This told against the Court declaring or mandating that the Minister must hold an inquiry. We may (we hope) safely assume that it would be unthinkable for a court ever to issue an order against a Minister mandating a particular decision-outcome in the context of one of the broadest subjective discretions on the statute book. Nonetheless, it is difficult to see how the Court, having identified these features of the discretion, failed to appreciate their relevance to their approach to review more generally.

Another factor in favour of restraint is that the Minister is directly responsible to Parliament, and is, as Home Secretary, regularly called to account in Parliament and its committees; thus, there is no pressing need for the court to act as an accountability mechanism. That Ministers may be held to account publically for their determinations as to the public interest is one of the key reasons why they rather than anyone else are responsible for deciding on inquiries. Judicial intervention may muddy this otherwise clear line of accountability: rather than taking responsibility for initiating an inquiry the Minister can assert that their hand was forced by the courts. This could close off legitimate political debate. Further, the decision to establish an inquiry is in significant respects a decision over allocation of public funds. A core reason why Ministers are bestowed with wide discretion is that inquiries often involve heavy expenditure. Resource-allocation is a function for the executive branch, with which courts should be reluctant to interfere.

Similarly, given lack of judicial experience of foreign relations and lack of judicial knowledge of the intricacies of the state of foreign relations between the UK and foreign powers (specifically Russia), the confidence with which the Court in Litvinenko dismissed the Minister’s invocation of such concerns as telling against an inquiry was striking. The Court was unconvinced by the Minister’s view that an inquest as opposed to a public inquiry would be preferable in foreign relations terms partly on the basis that no evidence had been put forward in support of it. But it is difficult to know what evidence one would submit to substantiate views as to how an inquiry might affect foreign relations; the matter is one of judgement for those with experience and knowledge of such things.

None of these concerns – of legal principle, statutory context, or democratic and institutional legitimacy – were considered by the Court. Indeed judicial decision-making disciplined by concrete legal principles is increasingly unfashionable in common law judicial review. The courts are seemingly increasingly attracted to a free-floating, “contextual” approach to scrutinising the substance of executive decisions, which typically involves open-ended judicial weighing of disparate considerations on a case by case basis. The argument made to legitimate this approach is that courts exercise self-discipline. Cases such as Litvinenko suggest otherwise. It is not difficult to identify examples of statutory context being sidelined in judicial analysis in common law review; whereas the parent statute and Parliament’s will were once the analytical starting point, the focus of judicial scrutiny of public power increasingly is upon judicially-articulated substantive values rather than the public goals that public powers exist to serve.

In the end, to what extent does the Minister retain the wide freedom which Parliament intended them to have to decide whether an inquiry should be held or not, when a decision is vulnerable to being vetoed by a court on the simple basis that the court disagrees with the Minister’s reasons? This is effectively to superimpose onto the existing legislative scheme a further stage in the decision-procedure, which fundamentally runs against the grain of that legislative scheme.

I have deliberately expressed no view on whether the initial decision to refuse to launch the inquiry, or the ultimate decision (made following the court challenge) to do so, were right or wrong. No doubt reasonable people will disagree. And in a sense this is the point. You and I, politicians, journalists and those who happen to be judges may all disagree in good faith as to what are good or bad bases for decision and what is ultimately the best course. But Parliament has determined that it is for the responsible Minister to exercise her judgement as to which reasons constitute good reasons for holding a public inquiry and what course lies in the public interest.

Dr Jason N. E. Varuhas
Associate Professor, University of Melbourne