By Nicholas Reed Langen
Since taking office in the summer of last year, Keir Starmer’s Labour government has suffered a drastic loss of approval. His term so far has been marked by erratic decision-making and an adoption of the right’s agenda on migration and economics. At the same time, the UK Supreme Court largely refuses to interfere with the government’s actions. In his op-ed, Nicholas Reed Langen unpacks double standards in the government’s reasoning and explains why a liberal democratic conception of the separation of powers requires the judiciary to scrutinize the government’s acts more rigorously.
In July, the Labour government proscribed Palestine Action as a terrorist group. Shortly after, ministers defended nationalist mobs massed outside hotels, chanting against the asylum-seekers housed there. According to ministers, this distinction is because white-nationalist mobs are not terrorists, but have ‘legitimate concerns’. In this topsy-turvy vein, the UK government continues to supply arms to Israel even as it accuses the country of genocide, while the Israel Defense Forces raze the Gaza strip and its soldiers shoot starving Palestinians. Meanwhile, ministers appear on the airwaves at home talking about the “crisis” in illegal immigration, promising to solve it by returning foreign-born criminals to their home soil.
There would be a savage irony to this moral inversion if there was anything that might thread the government’s thinking together. Not even polling can consistently explain Keir Starmer’s haphazard decision-making, as some sort of benighted attempt to act according to the popular will. Israel’s devastation of Palestine is reviled across every demographic. Yet here Labour closes its eyes to the popular will and to moral exigency. Rather than coordinate a substantive international, European, or even national response to the genocide, Labour’s response is to brand pro-Palestine protesters as terrorists. After a single, peaceful, pro-Palestine march of 1500 people in September, there were over 850 arrests made on terrorist charges. If you consider arrest figures, the Quakers, the peace-niks, and the geriatrics arrested are one of the greatest terror threats the country has faced post 9/11. They are an even greater threat than the violent white-nationalists that marched in London on the weekend after, which saw twenty-six officers injured and four ‘seriously hurt’. Arrests made? Twenty-five.
But polling – alongside the placards and pitchforks being waved outside of repurposed hotels – can explain Labour’s response to asylum-seekers and immigration. Here, irony does strike. Unlike in Palestine, this is not a crisis-that-is but a crisis-that-is-believed-to-be. Rabble-rousers like the fallen academic Matthew Goodwin, Reform’s Nigel Farage, and Stephen Yaxley-Lennon (better known as Tommy Robinson) might rail against the diversity and decline of Britain and demand to keep “English for the English.” But their imagined crisis only becomes a crisis if the government allows it. People are not angry because of immigrants and asylum-seekers. They are angry because the state is failing, and immigrants are a more accessibly positioned punching-bag than anything or anyone else. Duplicitous narratives like Reform’s only gain traction if the government refuses to offer a compelling and truthful counter. Instead of challenging the narrative, they embrace it. The increasingly influential Blue Labour group, headed by Maurice Glasman, is mainstreaming far-right positions, claiming that immigration is “the most fundamental of political questions.”
These are not idiosyncratic examples of the rule of the current government, but its modus vivendi. One year into office, Labour has preferred to play-act at power rather than rule with purpose. Still, it is not as if any other part of the state apparatus is pulling its weight. Parliament is a dead letter. The good intentions of Labour’s dissidents, Jeremy Corbyn and Zarah Sultana, are far outstripped by their fecklessness; while under the Nigerian-raised Kemi Badenoch, the Conservatives are grappling with how to offer a Reform-friendly anti-immigrant pro-racist platform, longing for the halcyon days of Liz Truss and the lettuce.
With an erratic executive and a paralyzed legislature, hopes might rest with the third branch of government to take a stand. But the judiciary is not mounting a rearguard action either. Led by Lord Reed, the Supreme Court’s decision-making is explained not by his intellect, but by his obeisance. He and most of his fellow justices continue to rule as though liberal democracy, not majoritarian democracy, is ascendant. In a recent case decided by the Supreme Court, Shivdler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30, the justices were asked to examine the imposition of sanctions on Eugene Shvidler, a Russian-born British citizen, with connections to prominent Russian oligarchs, including Roman Abramovich. Under the Sanctions and Anti-Money Laundering Act 2018, ministers have “extensive powers…to make regulations…[imposing] stringent restrictions on individuals and businesses” regardless of whether they have committed criminal acts. If challenged in the courts, they need only show that the restrictions are “proportionate to the aim for which the sanctions are imposed.”
So far, so good. In a bid to fight Russia’s invasion of Ukraine and Putin’s oligarchic empire, exerting pressure on the lackeys that do his bidding abroad is a legitimate form of combat. What is less legitimate is allowing the government to decide who should be sanctioned more on vibes than on reality. At least that should have been the theory. Instead this was the interpretation of the proportionality test endorsed by the Supreme Court majority in upholding the sanctions against Shvidler.
Under the standard form of the proportionality test, which is a “searching” standard of review, the court must make “its own assessment [on] whether such action is proportionate, and hence lawful, or not.” The test is fourfold, requiring the decision-maker to show the policy pursues a legitimate aim; is rationally connected to it; could not be achieved less intrusively; and fairly balances the needs of the community and the rights of the individual. None of this is contentious. What is contentious in the judgment is how much weight should be given to the decision-maker’s initial judgment(s). In the majority’s view, ministers should be “accorded a wide margin of appreciation in making their judgments about whether the objectives of the measures”, with regard given to the context.
This judgment accords to the government a level of deference it does not deserve. As its approach to Palestine Action and to illegal immigration show, this government, and the ones before it, are willing to use chainsaws to change burnt out lightbulbs. Sure, there is some vague relationship between the method and the end, but it is rarely one that survives scrutiny. Shvidler, a British citizen since 1999 who once fled the USSR for America and has connections to Abramovich but not to Putin, has been openly critical of Russia’s invasion of Ukraine. Still in its decision that he is a legitimate target of sanctions, the Foreign Secretary may be right. But their decision should be subject to searching scrutiny, not rubber-stamped on the basis that “limiting and deterring Russian aggression in Ukraine is one of the most vital aims that the UK government has…pursued” and so justifies “obviously very drastic” consequences for British citizens like Shvidler and his family.
This was the basis of the fulsome dissent by Lord Leggatt, who took the majority to task for bending the knee. In what Professor Mark Elliott, at the University of Cambridge, has called his “Liversidge v Anderson moment”, Lord Leggatt dismantled the majority’s judgment on the basis that they misconceive the separation of powers. One of the most fundamental parts of democratic constitutions, the separation of powers emphasizes that each organ of the state has “separate roles and competences”, and that there must be mutual recognition of these institutional capacities. Among these institutional capacities is that the courts play a crucial role in defining and protecting individual liberties. In taking the government’s word that the sanctions struck a “fair balance” and emphasizing the need for deference, the majority abandoned its post. The responsibility of the justices is to examine the reasoning of ministers from beginning to end, not to draw zones of non-interference around which a minister’s judgment is sacrosanct.
As Elliott has already observed, Leggatt’s judgment is no ode for the ages. The majority judgment is not clear on where the line was drawn on deference (even if that is an issue in and of itself), and so the conclusion of the court is not a manifest absurdity. But in emphasizing the need for deference and mangling the margin of appreciation, the Supreme Court deserved to be called out, and it is edifying to see the majority being held to account from the bench by their brethren.
Governments deserve respect. But they do not deserve the respect Lord Reed’s Supreme Court’s recent decisions have conceded to them. Reed’s “commitment to formalism”, as the LSE’s Conor Gearty labelled it in the London Review of Books, has seen the Supreme Court squeeze itself into a corner of the UK’s constitution. Only the most repugnant and egregious of government policies, like the last Conservative government’s Rwanda-deportation connivance, trigger a response. For the most part, its precedent serves to “insulate the decision-maker from judicial review”. As the government’s hapless positioning on Palestine and on asylum-seekers shows, this immunity to scrutiny could not have come at a worse time. We need the courts to hold the government’s intellectually and morally vacuous decision-making up to the light, not to throw a rag over it and pretend the flaws aren’t there for all to see.
Nicholas Reed Langen is a writer and legal commentator. He is editor of the LSE Public Policy Review.
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
