Book Review: Rob George, Wards of Court and the Inherent Jurisdiction (Hart, 2024, 293 pp, hardback, £90, ebook £free)
I have spent quite a bit of time with the wet towel around my head recently working out precisely how the recent Supreme Court decision in Abbasi & Haastrup translates across to the Court of Protection (for some thoughts with Hannah Taylor of Bevan Brittan, see here). Part of our discussions revolved around whether the reliance placed by the Supreme Court upon the parens patriae jurisdiction to justify the orders made providing for anonymity of clinicians in serious medical treatment cases translated across to the situation where the Court of Protection is considered such cases involving adults with impaired decision-making capacity. In this context, I reminded myself that I had yet to review the book published by Professor Rob George (now KC) last year on the strange history of the inherent jurisdiction in relation to children and adults. So, with apologies that it is slightly overdue, here it is.
The first thing to note about the book is that it is available for free in electronic form here, which is hugely to the credit of all those involved, because it is a book which deserves to be read very widely.
The second thing to note is that it comes with a foreword from Baroness Hale which strongly endorses the central – and very challenging – message of the book, namely that the High Court’s inherent jurisdiction is being used improperly. Both George and Baroness Hale reserve some of their strongest criticisms for the use of the inherent jurisdiction in two particularly controversial areas:
- In relation to the deprivation of liberty of children, Baroness Hale noting her view that: “[t]his flies in the face of the statutory scheme [set out in s.25 Children Act 1989] and may well violate article 5 of the European Convention on Human Rights because the power to do this is not sufficiently precise to be ‘in accordance with the law’. Perhaps worse, it lets the government off the hook for their failure to provide adequate placements for some very troubled children.”[1]
- In relation to the adults who have capacity but are in some way vulnerable. Baroness Hale describes this as the “bare-faced invention of a jurisdiction which does not exist,” and goes on note her view that “Parliament deliberately decided not to enact a limited protective scheme, preserving the autonomy of the person concerned, which the Law Commission had proposed in 1995.”
Taking these together, she goes on to wonder whether she:
had wasted most of my time at the Law Commission – helping to devise carefully thought-out schemes for the care and upbringing of children and for decision-making on behalf of adults unable to make decisions for themselves. I well remember how controversial our recommendations for strictly limited emergency protection for adults who did not lack capacity were within the Commission. Of course, the great majority of cases are dealt with under those statutory schemes, which were certainly necessary. But what is the point of devising principles, criteria and limits if the High Court can simply ignore them? Is the undoubted wisdom and goodwill of the High Court Judges a good enough excuse.
There is a huge amount packed into the nearly 300 pages of the book, which benefits hugely from the author’s portfolio career as both a practising barrister and a Professor of Law and Policy at University College London.
Right from the outset, it is notable for the clarity both of thought and of exposition – the discussion of what, exactly, the concept of the court’s inherent jurisdiction means in the introductory chapter is a model of lucidity. It then gives a fascinating history of how the courts have shaped the “great safety net” of the inherent jurisdiction over time in relation, before turning to set out the principles, the procedure (in children’s cases – as he notes later in the book, the procedure in relation to adults is still remarkably murky), and examine how some other common law jurisdictions have used it (spoiler alert – very sparingly).
Having laid the groundwork, it is in Part II that George really starts to move onto the offensive, challenging not just how it is used, but in some cases whether it is even legitimate to use it, in relation to a range of specific areas.
Each of these chapters merits careful reading by those who are asked both to argue and to determine cases falling with their scope, but for present purposes I want to focus on Chapter 14, “Vulnerable Adults with Mental Capacity.” Of particular assistance here is the way in which George places matters in a historical perspective (relying in significant part upon, but at a number of points critiquing, Sir James Munby). I anticipate that many who have got this far in the review might have been scratching their heads as to what Baroness Hale was talking about by reference to the Law Commission’s work in the 1990s, and what that could have to do with this issue, as most people now only remember it for leading to the MCA 2005 – i.e. a jurisdiction over those lacking material decision-making capacity. What George reminds is that there was a whole part of its Mental Incapacity report which was specifically addressed to public law protections of “vulnerable adults.” Those recommendations were not enacted. George, along Baroness Hale, takes the view that this represented a “clear policy decision not to legislate in relation to vulnerable, capacitous adults – as David Lock puts it, it was ‘deliberately left out’ of the Mental Capacity Act 2005 (‘MCA 2005’) scheme” (page 201).[2] Further, as George suggests “[i]t has no historical basis – as recently as 2003, the authorities were categorically against there being such a jurisdiction. As Hewson noted, ‘[a] perceived need for a remedy does not thereby endow judges with power, however worthy their motives’, and some of the authorities deployed in support are used in a positively misleading way, cited to support points in direct opposition to their ratio” (page 223). His conclusion is damning:
The jurisdiction in relation to vulnerable adults is the archetypal example of the protective imperative in action – and of the dangers of this ‘intuitively appealing’ approach. The subjects of the applications are invariably in sympathetic situations, where human instinct is to want to help – but from this desire to protect, the court has created an entire jurisdiction with no clear definition as to who may be subject to it, no established principles, no predictability of application, and no safeguards. While potentially well-meaning, it is dangerous and constitutionally inappropriate: it should be ‘no function of the courts to legislate in a new field’ in this way. If there is to be such a jurisdiction, it should come from Parliament. There should be a clear structure; those who fall within its scope should be known and predictable; coherent principles must exist addressing how the powers can be exercised; and limitations on the court’s powers should be expressly stated (including P’s right of veto). These requirements are ill-suited to development by the judiciary from scratch, as the existing state of the law demonstrates.
Some of the most difficult questions I get asked wearing my hat as a practising barrister are as to whether and when the inherent jurisdiction can be used in relation to an adult understood to have capacity but to be vulnerable (my attempt along with others in my Chambers to give some guidance can be found here). But Baroness Hale’s ringing endorsement of George’s detailed critique might be thought to raise real questions about whether the exercise is even a legitimate one at all.
That is not to say that those judges who have taken the view that capacity is necessary but insufficient for the exercise of true autonomy (which lies at the heart of the invention of the jurisdiction) are wrong. We only need to see the debates about the Terminally Ill Adults (End of Life) Bill to recognise the truth of this (and the work of Kevin Ariyo has also really helped expand our understanding of interpersonal influence in the legal context). But this book might be thought to make more urgent the question of whether this is not a matter which not just could be thought about by Parliament, but must be thought about by Parliament.
I have focused on this part of the book because it is an area that I have found troubling for many years; others will no doubt focus in other parts and will either have their concerns reinforced or start spluttering that George must be wrong (and, in the process, will be helpfully forced to think precisely why that must be the case). Overall, therefore, this is indeed, as Baroness Hale says in her introduction, a “remarkable book.”
[1] The book, current to June 2024, pre-dates the introduction of the Children’s Wellbeing and Schools Bill, which may (through clause 11, expanding s.25 Children Act 1989), address Baroness Hale’s concerns as to the procedural aspects, if not her concerns about the adequacy of provision.
[2] I have some considerable sympathy with this view, but the historical record is remarkably sparse for something quite so (relatively) recent – as George notes (at page 201), the “1997 consultation Green Paper stated that the government was ‘not convinced that there is a pressing need for reform’. By the time of the White Paper, all mention of this part of the Commission’s report had disappeared.” It feels like quite a bit might lie between those two sentences.
