Recent events have conspired to make the end of the first decade in the history of the Supreme Court of the United Kingdom rather memorable: one must guard against the obvious danger of the judgment and reaction to that judgment in the prorogation case helping to create a rather distorted picture. A Times columnist wondered whether this was a turning point, when we were ‘heading to an American style system’ and a Sunday Times columnist had no doubt that the judgment reflected a ‘fundamentally political decision.’ (Some of the reaction expressed in the media and by certain politicians betrayed a level of ignorance which was both stupefying and depressing.) However, such comments that I have quoted, and comments on similar lines expressed in editorials in certain newspapers, serve to remind one of the fears expressed by those who had argued against the creation of a supreme court once its creation had become part of the policy of the Labour government in June 2003.
Crudely put, the fear was that there a real risk that such a court would gradually metamorphose into a constitutional court on US Supreme Court lines, challenging the sovereignty of Parliament; and that there would be a certain amount of ‘grandstanding’ by its members. On the other hand, the aims and expectations on the part of those who had argued in favour of a supreme court were relatively modest. They were mainly concerned to see greater transparency and clarity in our constitutional arrangements such as to ensure that our highest court had a clearly visible and distinctive public profile – one which was separate from, and independent of, the law-making and politics in the Palace of Westminster. Those expectations have certainly been fulfilled. The contrast between the accessibility and high public profile of the Supreme Court, (particularly in terms of TV coverage and online streaming of proceedings), on the one hand, and the quaintness and relative obscurity of the former Appellate Committee of the House of Lords, on the other, could not be greater. Judged on this level the first decade has been a resounding success. But what of the court’s performance in terms of actual decision-making and the judgments it has delivered over its first ten years; and what bearing, if any, do the Article 50 and Prorogation cases have on the big picture?
During its first four years, under the Presidency of Lord Phillips, two features were particularly noticeable. One was the frequent deployment of nine member panels, occasionally on somewhat surprising occasions. Instances in which they were deployed, for example, concerned issues such as to whether a school’s admission policy was racially discriminatory; whether pre-nuptial agreements were legally enforceable; and whether European Convention rights applied to British military personnel in a war zone in in the Middle East. Another noticeable feature was the frequency of split decisions. In the school admissions policy case, for example, precisely the same competing views divided the panel of nine (in this instance by five to four) which had divided a panel of five (by three to two) in a sex discrimination case heard by Appellate Committee some 20 years previously. Overall, during this period split decisions were roughly at the same percentage level as in the latter years of the Appellate Committee. There were also instances where although there was unanimity in regard to the end result, differing and competing reasons were given for reaching that result. In one case where the issue was whether non-compliance with a disciplinary procedure incorporated into a contract of employment could give rise to a common law action for damages, apart from the statutory remedy of unfair dismissal, although there was majority of six to one in respect of the actual result the majority were evenly divided as to what was the correct basis for the decision, each of the two factions rejecting the basis relied on by the other. This sort of outcome was hardly conducive to providing clarity where complex issues of law were in play.
The next four years, under the Presidency of Lord Neuberger, saw a marked reduction in the deployment of nine member panels. So far as the frequency of dissent was concerned, one of the stated aims of Lord Neuberger on his appointment was to reduce it so far as was possible, and to thereby enhance the authority of the court. Initially he seems to have succeeded: over a period of eight months there was an almost unbroken succession of single judgments. However, this trend did not continue, and the frequency of split decisions went back to, and has continued to remain at, its original level; and decisions where differing reasons have been given for reaching the same result continued, and still continues, to cause problems for practitioners.
The range of private law appeals heard by the Supreme Court throughout the first decade has been every bit as wide as those heard by the old Appellate Committee. Using the last two years as a snapshot, the court has heard cases involving the following issues: whether an orally agreed change to a written contract was enforceable even though that contract expressly stipulated that any subsequent change must be agreed in writing; whether a claim for damages could be brought against a person whose identity and address are unknown; whether fire damage to a car was covered by insurance when the fire was caused whilst it was being repaired and was not actually in use; whether an oral agreement between a property developer and an estate agent was enforceable where the precise circumstances in which commission was payable had not been spelt out; and whether a notice of termination of a contract of employment took effect when the letter containing the notice had been posted or when the employee first became aware of its contents.
What of the Supreme Court’s record in its handling of public law cases – the area which inevitably has recently attracted the most attention? Unsurprisingly, the court has consistently applied the concept of proportionality – already well developed in the latter days of the Appellate Committee – in cases involving human rights and ‘fairness’ issues; but arguably only a couple of its decisions would strike one as in any way surprising. One was where the court ruled that a regulation prohibiting the entry or stay in the UK of a spouse of someone lawfully resident in this country if that spouse was under eighteen was unenforceable. It did so on the basis that the regulation could not be justified such as to comply with Article 8 of the European Convention. The other was when it quashed a certificate which had been issued by the then Attorney General to prevent disclosure of Prince Charles’s correspondence with certain ministers after the Upper Tribunal, reversing the Information Tribunal, had ruled that it could be disclosed. It did so by applying the principle that a decision of the court is binding as between the parties, and cannot be set aside by anyone – least of all by the executive. Where public policy issues of a controversial nature are concerned, the Supreme Court has, in fact, been noticeably cautious. Examples are the compatibility or otherwise of the Suicide Act with the European Convention and whether legal professional privilege should extend to advice given by professional persons other than lawyers.
So finally, do the decisions in respectively the Article 50 and prorogation cases cause one to reassess the role and performance of the court? I think not. Both cases were concerned with a particularly nebulous area of constitutional law: the limitation on the exercise of prerogative powers. In the Article 50 case no one seriously suggested that the majority decision was one which the court, in terms of jurisdiction, was not one which it was entitled to make; and the unanimous decision in the prorogation case was decided by reference to what was perceived to be two fundamental principles of constitutional law: the sovereignty of Parliament (involving the power to scrutinise and to legislate), and the accountability to Parliament of the Prime Minister and his ministerial colleagues for their actions and decisions. The issue as to whether the prorogation was a ‘proceeding in Parliament within the meaning of the Bill of Rights’ was a classic exercise in statutory interpretation. Writing recently in his regular column in The Times, Lord Pannick has rejoiced that the Supreme Court has at last become a constitutional court. With respect, it has become nothing of the sort. It is simply a court of final appeal which has had to engage with two novel constitutional issues, neither of which is likely to arise again.
Frederic Reynold QC has enjoyed a long career at the Bar, appearing in landmark cases in different areas, but in particular in employment, trade union and discrimination cases. His book High principles, low politics, and the emergence of the Supreme Court was recently published by Wildy, Simmonds & Hill.