The Supreme Court today
Four years on from its inception, the Supreme Court has evolved considerably. Alan Paterson examines its way of operating and how it contrasts with that of its predecessor, the Appellate Committee of the House of Lords
In October the Supreme Court embarked on its fifth year as the UK’s top court. There has been a real changing of the guard since it began in October 2009. The new President and Deputy President are flanked by 10 Justices, only three of whom formerly served on the Appellate Committees of the House of Lords. This is an indication of the impact that a mandatory retirement age can have on an appellate court, which starkly contrasts with the position on the US Supreme Court where the turnover of Justices is much slower. Nevertheless for the first time since its inception the UK Court can look forward to a period of three years or so of stability in its membership. Stability makes a difference not just to issues that nobody notices such as room changes in the court – and yes, geography matters in final appellate courts more than the court watchers of the past have been aware – but to issues that they do, such as attitudes to single majority judgments, dissents and concurrences – in short, team-working. Here there has been a sea change from the Bingham era of the House of Lords. The intellectual weight of that Court – the strongest in the House of Lords in recent times – emanated from the individual strengths of its members. This meant that, unlike the English Court of Appeal (then and now), the House of Lords in its last decade was only intermittently collegial, in the technical sense of working together as a team. For Lord Bingham and most of his colleagues opinion writing, concurrences and dissents were largely a matter of individual preference.
A more consensual style of decision-making
In the Supreme Court, however, there has been a marked shift towards team working and collective decision-making. The Justices meet before each hearing and more often after the hearing than was the case under Bingham. In the past, oral discussions between Law Lords were commonplace, now email takes the strain as Justices engage privately with each other’s judgments with the aim of influencing the ultimate decision of the Court. In part this stems from the pressure that has grown in the Supreme Court to strive for fewer judgments in each case as compared with the relaxed days of Bingham. In the first half of 2013, 55% of Supreme Court cases had a single judgment – a figure last experienced in the early 1990s. Although fewer judgments are being published, that is not the whole story. Those that appear are getting longer on average, moreover multiple drafts are more frequent as are draft judgments that are never actually published. In the past few Law Lords withdrew a judgment once it had been circulated. This is less uncommon in the Supreme Court – particularly when the draft judgment has nudged the lead judgment writer into making concessions or ceding part of the contested field.
Working more closely together can produce tensions in the Court – as we saw in 2011 – both in public and private, in a way not seen in the House of Lords since the Pinochet affair. There is an argument that there should be more internal case conferences in contested cases – but there is a counter argument that this may only lead the members of the Court to go into advocacy mode to defend their own positions rather than seeking the middle ground. One thing that is clear is that most of the Justices believe in the value of public engagement with each other’s judgments (something that began in Bingham’s time) in the minority of cases today where there is more than one judgment, to delimit areas of agreement and disagreement for the benefit of the wider legal world.
Increased use of enlarged panels
Collective decision-making and team working become harder where the Court sits in enlarged panels, as does the role of the presider. This, too, is a major difference from the House of Lords. Between 2000-2009 the House of Lords sat 13 times with an enlarged panel. In the Supreme Court from October 2009 to September 2013 the figure for the number of enlarged panels was 56. The dramatic difference was partly because shortage of space in the Lords made it difficult to secure a bigger room for hearings with a larger panel, a deficiency that the new Supreme Court courtrooms were constructed to overcome. It is also partly attributable to Lord Phillips’ belief, shared by a number of his colleagues, that too many of the close call cases (those with two or more dissenters) in the Lords were being decided by the chance of which Law Lords sat on the panel. This, of course, leads to the argument which has been raised from time to time with respect to the Supreme Court, should it sit en banc? The short answer is that the courtrooms are not big enough to permit this comfortably and that in any case the workload of the Supreme Court and the Privy Council is such as to make regular en banc sittings of the Court impractical. Nor would it resolve Lord Phillips’ conundrum, because the appointment process to the Supreme Court is no more aimed at appointing Justices with a diversity of judicial philosophies than it is on tackling other forms of diversity. Curiously, the flow of larger panels has slowed, perhaps temporarily, but a scrutiny of the cases scheduled for hearings in the current term reveals only two with an enlarged panel (less than half the statistical norm for a term). It will be interesting to see if this is a blip in the new pattern or whether it presages that the Court has had a re-think as to the frequency with which larger panels are desirable.(See on this A. Burrows, ‘Numbers Sitting in the Supreme Court’ (2013) 129 LQR 305.)
A diversity of cases
The first enlarged panel (a fascinating Article 5 case on deprivation of liberty) is one of three separate appeals on Mental Health issues this term – about the same as the number of such cases in all of the first four years of the Court. The other is for a case which, unusually in modern times, was granted permission to appeal by the Court of Appeal. It is a freedom of information appeal brought by an investigative journalist and will involve the Court in revisiting its ruling in Sugar v BBC [2012] UKSC 4 on Article 10. However, there are a range of other intriguing cases for court watchers to anticipate: a challenge to HS2, the Christian hotel owners who refused a room to a homosexual couple despite them being in a civil partnership, the couple who instructed mutual wills and then signed each other’s wills by mistake, and the shop in the occupied territories in West Bank accused of breaching consumer protection legislation since it labelled its goods as ‘Made in Israel’. Throw in a tax avoidance scheme, two cases of secret evidence, a carousel fraud, an under-producing grouse moor, the second Attorney General’s Reference from the Welsh Assembly, and you have a smorgasbord for every taste. Forty years ago the top court focused mainly on crime, tax and commercial cases. For the Supreme Court private/commercial work is as significant as before but crime and tax have declined and public and human rights cases now make up 40% of their load. So the Home Department has not been left out this term. There are three immigration and asylum appeals (two based on Article 8 of the ECHR). Immigration and asylum cases – a bête noire of the Home Secretary – are ones where interestingly the Supreme Court has – as Lord Falconer predicted when the Supreme Court was established, and Lord Bingham demurred – taken a stronger line against the Executive than the House of Lords did, even under Lord Bingham. The Home Secretary will be surprised to learn, however, that very few of these reverses in the Supreme Court have been based on Article 8. All in all it promises to be an interesting term.
Final Judgment: The Last Law Lords and the Supreme Court by Alan Paterson, based on over 40 interviews with Law Lords and Justices, is published on 9 December 2013 (Hart Publishing).
Alan Paterson is Professor of Law at Strathclyde University
