The new (as opposed to the existing) Supreme Court

This blog has now been published here.

The Supreme Court has been with us since October 2009, and it has now begun delivering judgment in cases heard before it rather than the House of Lords. It therefore seems appropriate to offer some views on its performance to date.

Ordinarily, assessing the performance of a new public body would involve measuring its results against the stated reasons for its existence. In the case of the Supreme Court, however, reasons given for its creation were slim. In particular, no problem had been identified with the actual performance of its predecessor, the Appellate Committee of the House of Lords, namely the quality of its judgments or the method by which they were delivered. No difference in either respect has been identified in how the Supreme Court operates. Accordingly, the substance of its performance can be expected to be unchanged. We are therefore entitled to ask why Parliament bothered.

The only reason offered as to why the court was necessary was a vague argument that the Appellate Committee of the House of Lords did not conform with the notion of separation of powers. Lord Falconer QC, then Secretary of State for Constitutional Affairs and Lord Chancellor, in a document somewhat dubiously entitled “Doing Law Differently”, stated:

“Clarification of our constitutional arrangements is also being extended to the separation of the courts from the legislature and the executive. The final court of appeal, the body that makes the most difficult and controversial decisions, is currently the Appellate Committee of the House of Lords. To make the final court of appeal more visible with a clear division between the judges and Parliament, the jurisdiction of the Appellate Committee will be transferred to a new Supreme Court for the United Kingdom”

I suspect Lord Falconer may have had one eye on Strasbourg and our obligations under the European Convention on Human Rights. The reality, however, is that the influence of the rest of the House on its Appellate Committee was nil. The last time a non-law Lord sat on the Appellate Committee was in the nineteenth century, and his opinion was ignored.

No-one had thought to challenge the Appellate Committee’s legitimacy before Strasbourg, although art 6 of the Convention has formal requirements for an independent judiciary and there is ample precedent for challenges to judicial bodies on those grounds. The reason no–one thought to do so is that any such challenge in relation to the Appellate Committee would have been certain to fail.

In fact not only did Lord Falconer provide no reason to doubt the above, he gave every reason to support it, stating that “We have an independent judiciary of the highest probity and quality. Across the world, there is recognition that a decision from an English court will have the hallmarks of both judicial excellence and judicial integrity.”

It might be added that the Appellate Committee’s decisions were at one time followed almost as a matter of course throughout the Commonwealth, even by countries that had dispensed with the Privy Council as the final court of appeal. That may not be the case any longer, but the Appellate Committee still commanded high international respect and it cannot be assumed that the Supreme Court will automatically carry the same gravitas.

In other words, the stated reasons for the introduction of the Supreme Court are in reality compelling reasons against it. As an authoritative commentator, Francis Bennion, has put it: “if it ain’t broke, don’t fix it”.

It is also highly questionable whether Lord Falconer’s aim of “clarification” has been achieved; I would suggest the opposite. The name “Supreme Court” has already been in use since 1873, in reference to the High Court, as appears in the Supreme Court Act 1981 and on every solicitor’s practising certificate. That name has not been abolished, though the Supreme Court Costs Office has renamed itself the Superior Court Costs Office. Far from assisting clarification, therefore, the new court has introduced confusion, much as when the office of Mayor of London was introduced seemingly without any acknowledgement of the rather more long-standing office of Lord Mayor of London.

One senior member of the judiciary held similar misgivings. According to the Times:

"The creation of a UK Supreme Court verges on “frivolous” tinkering with the constitution and may have dangerous unintended consequences, Lord Neuberger, the Master of the Rolls has warned.

Lord Neuberger, a former law lord who declined to move to the Supreme Court, said changes to the UK legal system that led to the creation of the Supreme Court appeared to have been dreamt up “over a glass of whisky” by former Prime Minister Tony Blair.
....

“To change... the law lords into the Supreme Court as a result of what appears to have been a last-minute decision over a glass of whisky seems to me to verge on the frivolous,” Lord Neuberger told [a] BBC Radio 4 programme.

“The danger is you muck around with a constitution at your peril, because you don’t know what the consequences of any change will be.”

Blair’s announcement, six years ago, of plans to create a Supreme Court surprised many judges who were not consulted in advance."

Frivolous the exercise was indeed, but the cost was not. The modifications (somewhat controversial themselves) to the chosen building (the old Middlesex Guildhall) alone cost approximately £60m. There were surely more deserving causes. The building could have been retained in its former role as a much-needed Crown Court. More judicial assistants could have been hired for the Court of Appeal and the Appellant Committee, which may indeed have led to an improvement in the quality of judgments. One could go on.

All that said, however, the aforementioned whisky drinkers had their way and the Supreme Court duly came into being. Despite my opposition I wondered if they’d take the opportunity formally to reform one unsatisfactory feature that appeared all too often in the Appellate Committee, namely the failure to provide a single majority decision (something I have recently spoken about in the Times).

Time and again lawyers have been left frustrated when three, four or even five different opinions are produced, all concurring in the result but with separate and not always consistent reasoning. I wonder how many chargeable hours have been frittered away in composing advice or pleadings, and arguing in court, by the necessity to determine what precisely was agreed by the majority (if anything).

The point could not have been lost on the Law Lords themselves. Lord Bingham of Cornhill said ex cathedra a few years ago:

First, whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio. Without that, no one can know what the law is . . .

Which is precisely the point, but Lord Bingham has since retired and, as the recent high profile case of R (on the application of E ) v Governing Body of JFS [2009] UKSC 15, [2009] All ER (D) 163 (Dec) shows, the Supreme Court Justices seem to take a different view. Nine justices sat on the case. Five decided that the appeal would be dismissed. And all five wrote separate opinions. Lady Hale (the former Baroness Hale of Richmond) offered that all of them were essentially in agreement, which on the one hand is helpful but on the other hand immediately raises the question of why they bothered.

No doubt separately reasoned opinions have some value in giving law reformers and academics the benefit of the justices’ opinions, particularly when those contain suggestions for reform. Dissenting judgments add that value as well. But that benefit could easily be retained if it was made clear as a matter of course (as it often is, but not often enough) that Justice X’s decision represents the majority, and the separate concurring opinions are being added as obiter in case Parliament wishes to reconsider the matter. It should then be incumbent on the authors of such concurring judgments to identify precisely the points on which they are at variance with the majority decision (which in turn might make it easier to understand exactly what the majority meant).

The European Court of Human Rights follows a similar process, as does the judicial committee of the Privy Council. That judicial body only ever issues one opinion, written by one judge (though on the basis of a discussion amongst all of them, who all check the opinion before it is issued), with the occasional dissenting opinion published as well.

Doing so would be much more beneficial than the one step towards clarity which the Supreme Court has already – and in my view only marginally usefully – done, which is to issue an accompanying press release for every judgment. This functions as a rudimentary headnote, though it has no authority, and indeed specifically states that it does not form part of the judgment. It is not stated whether the press releases are authored (presumably they are not) or approved (presumably they are) by the justices themselves. But as well as lacking any authority, the best that a press release (or indeed a proper headnote) can do when there are separate majority judgments is identify the separate holdings. The inconsistencies or infelicities or other lack of clarity therein will remain.

In the first judgment given by the Court on a case heard before it, rather than the Appellate Committee, six judges were in the majority, with one dissenting. Three judges agreed upon one judgment. The press release called that the “lead judgment”. Given that three of six in the majority agreed, it could fairly be said to represent the ratio, but it would have been far better if the judgment had been formally stated as the leading judgment by the judges themselves.

One final point concerns the method of appointment to the new court. It was bandied about at the time of the court’s creation that a broader range of people might be considered, perhaps even lawyers who had never been judges. It seemed to me that this would be a mistake, on the ground that it would dissuade eminent practitioners from accepting appointments to the High Court in the hope of a direct promotion to the Supreme Court. According to the Times, the person considered a likely candidate for such direct promotion, Jonathan Sumption QC, eventually withdrew after concerted opposition from the judiciary on that and other grounds. The whole episode was an embarrassing farrago.

As with the whole decision to divert resources to the Supreme Court, the notion that a candidate could be appointed directly from the bar or elsewhere without first having to work his or her judicial passage stems from a failure to appreciate the equal (in some ways greater) importance of the lower courts. To be sure, the best candidates (whatever the criteria) should eventually hold the highest office, but to circumvent the lower courts is to ignore the fact that the vast majority of cases are heard there, and never come close to the Supreme Court. It is the High Court and Court of Appeal where most judge-made law is in fact made. That alone provides a justification for requiring all potential Supreme Court justices to spend some time – even the majority of their judicial careers – in the lower courts.

There is certainly a case for revising the process by which all judges are appointed (for an authoritative recent discussion, see Horne, A The Changing Constitution: A Case for Judicial Confirmation Hearings?, Study of Parliament Group, Paper 1, January 2010, and also here), but again, this is a complex matter requiring detailed consideration of the type that seems to have been lacking in the Supreme Court reform process.

Lord Neuberger predicted dangerous consequences, and disassociated himself from the Supreme Court accordingly (undertaking a Denning-esque move downwards to become MR instead). He has yet to be proven wrong.

Post script: This article contains much interesting and relevant discussion of the issues, but, with respect, has the same problem as most commentary on the Supreme Court – stating that there were various problems with the Lords and that the Supreme Court might take a different approach, but nothing certain about what that approach might be and why it would be better.

Post post script: the more recent Supreme Court case of Norris (Appellant) v Government of the United States of America (Respondent) [2010] UKSC 9 follows precisely the course which I advocate above. The lead judgment is by Lord Phillips and the other judges all specifically state that they are in agreement with him. Let us hope that this is now the model for all future SC judgments.