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Both in the UK and abroad, the highest courts are often grappling with the proper limits of anti-terrorism legislation. The reactions of governments to adverse rulings in this context can be as interesting as the judgments themselves.

The first case to be heard by our Supreme Court, HM Treasury v Ahmed [2010] UKSC 2 held that secondary legislation permitting the freezing of the assets of some terrorist suspects, was unlawful. However, as Joshua Rozenberg pointed out last week in the Law Society Gazette, the judgment did not result in the suspects having access to their funds. On the government’s application, the Court reconstituted itself to hear argument on whether the effect of its judgment should be delayed. Refusing the application, Lord Phillips stated “this court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment” (HM Treasury v Ahmed (No.2) [2010] UKSC 5). So the government responded by rushing amended emergency legislation through Parliament, retrospectively validating the previously unlawful position and setting up a new legislative framework for the continued freezing of the assets. The suspects will have to challenge the new orders in order to have access to their funds.

It is reminiscent of the response to the judgment in Secretary of State for the Home Department v AF [2009] UKHL 28, last year. In that case, their Lordships delivered a blow to the control order regime. It seemed clear that many control orders, where the ‘controlees’ had been told little or nothing of the allegations against them, would have to end. But lawyers representing those subjected to control orders have subsequently reported that in many instances the government has merely made minor adjustments leaving the controlees in a similar position. New control orders are imposed, on slightly different grounds, but in terms virtually identical to those that they replace, coming into force on the day the previous orders are revoked. The men in question have to restart the tortuous litigation process, to free themselves from the new orders.

Rozenberg also highlighted the government’s post-judgment reactions with reference to another recent case. Two weeks ago the Court of Appeal ordered disclosure of material that supported allegations of torture made by a former Guantanamo detainee, Binyam Mohammed. The case caused controversy because the government’s advocate, Jonathan Sumption QC, asked the Master of the Rolls, Lord Neuberger, to remove some passages of his judgment that were particularly critical of the Security Services. Here again, the effect of a robust decision by very senior judges appeared to have been diluted by the government’s post-judgment response.

However, Jeffrey Ewener in The Guardian provided a different perspective to this phenomenon. In his view, the UK government when faced with an unfavourable decision, at least accepts it has to make some form of accommodation in deference to the impact of the court’s ruling. He contrasted this with the position in two other common law jurisdictions. The US government, is largely powerless in the face of firm decision from its Supreme Court so its response is to embark on a political, rather than legislative, offensive. Even the US President will voice disagreement with the Supreme Court, as we saw with President Obama’s comments on the recent decision in Citizens United v FEC 558 U.S. _(2010), on campaign funding.

But perhaps strong reactions to Supreme Court decisions in the UK and the US illustrate the extent of the Courts’ influence and authority over government. Ewener contrasted this with the position in Canada. In the infamous case of Omar Khadr, a Canadian citizen has been detained in Guantanamo without trial since the age of 15. Lower courts ordered the government to request request the repatriation of Khadr. The Supreme Court agreed with the lower courts, but left it to the government to decide how to comply with its ruling. The Canadian government’s response has been to do almost nothing.

“In our shared form of democracy” Ewener concluded, “the court may be the highest legal authority in the land. But in Canada, a bland indifference reigns supreme”.