Prior to the Supreme Court being established, a seminar was conducted under Chatham House Rules to discuss how it should work. The notes of the seminar, published here, include the following:
a Law Lord said that in his experience there were two main areas of concern about the House of Lords. One was that the speeches in House of Lords cases were too long, there were too many of them in each case, and they were sometimes difficult to reconcile with each other.
The highly publicised “JFS” case (R (on the application of E) v Office of the Schools Adjudicator (Governing Body of JFS and others, interested parties) (British Humanist Association and another intervening) [2010] 1 All ER 319; [2009] UKSC 15) suggests that not much has changed from the days of the House of Lords. Five separate majority opinions were given. None was nominated as the leading judgment. Readers therefore had to read each one.
In such cases either the judgments are all consistent with each other, in which case five separate opinions are not necessary, or they are not, in which case the court would not have discharged its duty to clarify the law. (In the JFS case itself Lady Hale said as a passing remark that the majority judgments were essentially all the same).
The problem of multiple judgments is not of course confined to the Supreme Court or its predecessor: it is found throughout the common law world, and appears at every judicial tier involving more than one judge.
The reason why multiple judgments is a problem should be obvious. Points four and five of Lon Fuller’s classic eight requirements of the rule of law (as set out in his work The Morality of Law) are as follows:
4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
Where an appellate court produces multiple opinions of great complexity and minimal reference to each other, both of those requirements are potentially breached.
Lord Bingham, in an important public address in 2006, criticised modern common law judgments for their “length, complexity and sometimes prolixity”. He was not of the view that the solution would be for a single judgment along the lines of those issued by the Privy Council. Instead, he argued:
A single lapidary judgment buttressed by four brief concurrences can give rise to continuing problems of interpretation which would have been at least reduced if the other members had summarised, however briefly, their reasons for agreeing. And a well-constituted committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law.
But I would add …. [that] 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.
Lord Bingham’s final comment is obviously correct. I do not agree, however, that a single judgment followed by brief concurrences would be more easily interpreted if the concurrences were longer; that would be the case only if the first judgment were unclear of itself. If so, then ideally it ought to be remedied before delivery, or at the least the concurring judgments should be confined to expressing reasons on the points they find unclear in the main judgment. It also depends in part on the nature of the appeal. If a case is concerned with interpreting a statute or standard form contract, for example, then one judgment is the most likely method of a clear, certain interpretation.
It should be emphasised that the first role of an appellate court is to explain to the parties who has won and lost and why. Its second role is to clarify the law. Both those roles are best done by way of a single majority judgment. All other judgments given by judges in the majority should either be short (that is, non-reasoned) concurrences, or state clearly that the judge wishes to add some obiter views. These might be that the statute or case law under review is unsatisfactory, or that something objectionable has occurred in the case which justifies strong condemnation in addition to the disposition of the appeal. All that would be necessary would be for the judgments to begin “I agree with the decision of Justice X for the reasons she gives. I wish to add some observations of my own on …”
Of course there would be no objection to the leading judgment being split between different judges on different issues, as sometimes happens when a case raises disparate issues and different judges wish to answer each point, so long as the majority decision on each point is expressly identifiable.
Dissenting judgments – whether dissenting on all points or not – do not add any confusion since they will be expressly stated not to be in agreement with the majority judgment.
I quite accept that separate opinions can be invaluable to many including Parliament, law reformers and academics. If a point of law has been thoroughly argued by counsel then it is of benefit to hear the views of all of the leading judges on the subject. Yet that benefit could be retained without any of the confusion caused by having multiple judgments by following the procedure recommended above. The Supreme Court has done so on numerous occasions, but not always, which leads one to conclude that they do not have an avowed intention to do so. One hopes they will do so in future.
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