The Government’s defeat in court over migrants being housed at the Bell Hotel in Epping seems to have alarmed the Government and shocked some commentators, particularly on the Left. But really it shouldn’t. In case anyone else had not noticed, the expansion of judicial review over the years means that judges regularly block ministers from doing things. It usually boils down to whether the court thinks the government is being “irrational”. Housing migrants in a way that breaches planning laws will have that effect.
Other cases might potentially prove the same point. The Prime Minister’s move to formally recognise Palestine as a sovereign state, goes beyond political misjudgement. It is administratively incompetent for the UK to recognise a state which has two rival Palestinian governments; in the West Bank where Mahmoud Abbas has not held elections for 20 years and which is in a state of fierce enmity with the terrorists who are the controlling force in Gaza. It is irrational and bitterly inconsistent with British post-war policy to empower Hamas to such an extent that they have been crowing loudly that the recognition being promised is justification for the most murderous pogrom against Jews since the Second World War, their savage slaughter of over a thousand civilians on October 7, 2023.
Judicial review allows judges to assess whether a government decision is so irrational or unlawful that it must be struck down. Although not a judicial review, the result at the Bell Hotel appears to fulfil those criteria. This power has actually been expanding for decades. Just recently, a judge allowed a legal challenge to proceed against Home Secretary Yvette Cooper’s decision to proscribe Palestine Action as a terrorist group, the first time a court has agreed to review such a designation under the Terrorism Act.
Could the courts now intervene in Starmer’s decision to recognise Palestine? Traditionally, foreign policy decisions have been protected from judicial interference, resting on ancient royal prerogatives. But that protection may not last for ever. In 2015, a court suggested that if a foreign policy decision was sufficiently irrational, it could be subject to legal review. We may now have reached that point with Palestinian recognition.
This is because Starmer wants to recognise a “state” not only with no clear government, but with no internationally recognised borders, and where any UK diplomatic representative to the new state visiting Gaza would be holding court with a proscribed terror group Hamas, which throws gay people off buildings and keeps hostages in such torturous and starving conditions that even Henry VIII’s stomach would have turned.
This is not just reckless, it may be unlawful.
Worse still, the Prime Minister and his Attorney General, Lord Hermer, have been fixated with international law, or at least their selective understanding of it, to such an extent that they have been blind to the UK’s national security interests. Their legal idealism is overriding basic strategic sense.
And what’s more, instead of focusing on the real issues facing Britain, a faltering economy, a failing welfare state and unsustainable immigration, Starmer is wasting time trying to placate a Parliamentary Labour Party he clearly can’t control whilst also giving succour to extremists who have brought sectarian tensions to the streets of the UK for nearly two years now.
If no one challenges the recognition of a Palestinian state in court, it will not be because it is a sound decision. It would probably just be because no one has raised the money to initiate the challenge. And I wouldn’t place a bet on that. If it does get tested in court the Prime Minister may find himself embarrassed, and not for the first time.
Sir Michael Ellis KC is a former attorney general
The Government’s defeat in court over migrants being housed at the Bell Hotel in Epping seems to have alarmed the Government and shocked some commentators, particularly on the Left. But really it shouldn’t. In case anyone else had not noticed, the expansion of judicial review over the years means that judges regularly block ministers from doing things. It usually boils down to whether the court thinks the government is being “irrational”. Housing migrants in a way that breaches planning laws will have that effect.
Other cases might potentially prove the same point. The Prime Minister’s move to formally recognise Palestine as a sovereign state, goes beyond political misjudgement. It is administratively incompetent for the UK to recognise a state which has two rival Palestinian governments; in the West Bank where Mahmoud Abbas has not held elections for 20 years and which is in a state of fierce enmity with the terrorists who are the controlling force in Gaza. It is irrational and bitterly inconsistent with British post-war policy to empower Hamas to such an extent that they have been crowing loudly that the recognition being promised is justification for the most murderous pogrom against Jews since the Second World War, their savage slaughter of over a thousand civilians on October 7, 2023.
Judicial review allows judges to assess whether a government decision is so irrational or unlawful that it must be struck down. Although not a judicial review, the result at the Bell Hotel appears to fulfil those criteria. This power has actually been expanding for decades. Just recently, a judge allowed a legal challenge to proceed against Home Secretary Yvette Cooper’s decision to proscribe Palestine Action as a terrorist group, the first time a court has agreed to review such a designation under the Terrorism Act.
Could the courts now intervene in Starmer’s decision to recognise Palestine? Traditionally, foreign policy decisions have been protected from judicial interference, resting on ancient royal prerogatives. But that protection may not last for ever. In 2015, a court suggested that if a foreign policy decision was sufficiently irrational, it could be subject to legal review. We may now have reached that point with Palestinian recognition.
This is because Starmer wants to recognise a “state” not only with no clear government, but with no internationally recognised borders, and where any UK diplomatic representative to the new state visiting Gaza would be holding court with a proscribed terror group Hamas, which throws gay people off buildings and keeps hostages in such torturous and starving conditions that even Henry VIII’s stomach would have turned.
This is not just reckless, it may be unlawful.
Worse still, the Prime Minister and his Attorney General, Lord Hermer, have been fixated with international law, or at least their selective understanding of it, to such an extent that they have been blind to the UK’s national security interests. Their legal idealism is overriding basic strategic sense.
And what’s more, instead of focusing on the real issues facing Britain, a faltering economy, a failing welfare state and unsustainable immigration, Starmer is wasting time trying to placate a Parliamentary Labour Party he clearly can’t control whilst also giving succour to extremists who have brought sectarian tensions to the streets of the UK for nearly two years now.
If no one challenges the recognition of a Palestinian state in court, it will not be because it is a sound decision. It would probably just be because no one has raised the money to initiate the challenge. And I wouldn’t place a bet on that. If it does get tested in court the Prime Minister may find himself embarrassed, and not for the first time.
Sir Michael Ellis KC is a former attorney general