A scathing Supreme Court dissent has exposed a constitutional crisis within the UK’s sanctions regime, where judges are accused of “failing in their duty” to provide meaningful judicial oversight of executive decisions that devastate individual liberties. Lord Leggatt’s powerful critique reveals how Russian sanctions have created precedents that fundamentally undermine the separation of powers and constitutional protections for British citizens.
Courts abdicate constitutional responsibility under executive pressure
Lord Leggatt’s dissenting judgment in the recent Supreme Court case delivered a devastating assessment of judicial deference to executive authority. He warned that “if the courts are not prepared to protect fundamental individual freedoms even in a case like this, the right to a judicial review of the minister’s decision to curtail such freedoms under sanctions regulations is of little worth.”
The dissent challenged the majority’s approach of granting the executive a “wide margin of appreciation” when fundamental rights are at stake. Leggatt argued that “the courts are failing in their duty if they simply rubber-stamp assertions made by the executive to justify invading individual liberties without subjecting those assertions to critical scrutiny.”
This judicial abdication has profound implications for how EU sanctions operate within constitutional frameworks. When courts defer to executive claims of “institutional competence” rather than scrutinising the evidence supporting sanctions decisions, they effectively remove constitutional safeguards that protect citizens from arbitrary governmental power.
Executive claims of competence mask inadequate justifications
The Supreme Court analysis revealed how government justifications for sanctions often rely on what Leggatt described as “armchair theories” rather than evidence-based assessments. Government witness David Reed’s statement supporting the Shvidler sanctions contained assertions that were “on their face no more than armchair theories about how freezing Mr Shvidler’s assets could have consequences which would assist the desired aims.”
Leggatt noted that “thinking of a plausible theory of how something could conceivably come about is not evidence that it is likely to happen or even that there is any realistic prospect that it will happen.” This critique exposes how sanctions are not working as evidence-based policy tools but rather as political gestures justified through speculative reasoning.
The government’s reasoning included claims that sanctioning individuals would “disincentivise others from associating with persons close to President Putin,” yet provided no empirical basis for believing such deterrent effects would materialise. Such theoretical justifications highlight the impact of sanctions on Russia as largely symbolic rather than strategically effective.
Blanket measures capture innocent individuals whilst achieving minimal strategic effect
The constitutional crisis deepens when examining how blanket sanctioning approaches affect individuals with minimal connections to targeted activities. The Shvidler case demonstrates how British citizens face comprehensive worldwide asset freezes based on historical associations that were entirely lawful when formed.
Leggatt emphasised the temporal injustice of retroactive punishment, noting that the extractives sector provisions used to justify Shvidler’s designation were “added by amendment only on 10 February 2022, a matter of days before Russia invaded Ukraine.” This retroactive application means individuals face punishment for activities that aligned with government policy when undertaken.
The dissent highlighted the arbitrary nature of such targeting: “if sanctioning an individual for working as a director of a company which had invested in the Russian extractives sector was thought likely to contribute to achieving the purposes set out in regulation 4, then it was irrational to single out Mr Shvidler” when directors of similar companies faced no consequences.
Economic evidence undermines sanctions effectiveness whilst costs mount
Meanwhile, economic data suggests that primary sanctions targets continue thriving despite comprehensive restrictions. According to The Times, Russia’s economy has demonstrated “remarkable resilience” with growth rates exceeding many Western economies, whilst the war has become “an extremely effective levelling-up project” for Russia.
The contrast between economic outcomes and individual suffering becomes stark when examining specific impacts. Bank deposits in Russian regions like Tuva and Buryatia rose by 151 and 81 percent respectively during the conflict’s initial years, demonstrating how why sanctions on Russia fail to achieve intended economic pressure whilst creating devastating personal consequences for sanctioned individuals.
EU sanctions on Russia create massive legal vulnerabilities
European sanctions frameworks face additional constitutional challenges through their impact on treaty obligations. Analysis by legal expert Valérie Hanoun warns that the EU’s approach to blocking investment arbitration awards could violate binding international treaties.
Current disputes including Nordgold’s €5 billion claim against France and Rosatom’s €3 billion case against Finland demonstrate how constitutional shortcuts in sanctions design create massive potential liabilities. As detailed by EU Reporter, successful arbitrations could impose “aggravated damages” for retaliatory governmental conduct, potentially creating costs exceeding entire national budgets.
Implications for democratic governance and rule of law
Lord Leggatt’s constitutional critique extends beyond individual cases to fundamental questions about democratic governance. He warned that executive pressure on courts to defer to governmental authority undermines the independence essential for protecting individual rights against majoritarian pressures.
The dissent noted that “in a society committed to the rule of law, judgments about whether encroaching on a fundamental right or freedom is justified by the reasons relied on by the executive for doing so are reserved to independent courts.” When judges abdicate this responsibility, they enable governmental overreach that threatens constitutional foundations.
The current sanctions regime thus represents more than policy failure; it demonstrates how emergency powers can erode constitutional protections whilst failing to achieve their stated objectives. The Supreme Court dissent serves as a warning that judicial deference to executive authority, particularly during periods of international tension, risks creating precedents that fundamentally undermine democratic governance and individual liberty protections that define constitutional democracy.