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Lord Hope of Craighead has given his first interview since becoming the Deputy President of the Supreme Court. Speaking to Jean-Yves Gilig, editor of the Solicitors Journal, the interview focuses on how the Supreme Court’s judgments are drafted; how that process has begun to evolve from the approach taken in the House of Lords; and why the Court will not be issuing single judgments in the manner of the European Court of Justice.
One of the key differences in approach that Lord Hope outlines is in the amount of discussion that the Supreme Court Justices are now able to have with each other, before the judgment is committed to paper. In the House of Lords, the lack of physical space meant that it was very hard in practice for the Law Lords to meet up and discuss or plan their judgments, before or after a hearing. Often, their Lordships would be left discussing cases in hushed tones in the corridors of the Palace of Westminster. The Justices can now meet in dedicated rooms, both before a hearing in order to decide how to address it, and afterwards to exchange their preliminary views on the case. This opportunity for the Justices to gauge each others’ thoughts at an early stage informs the entire process of drafting the judgments. The intellectual interaction continues with the Justices circulating and discussing their draft judgments. As Lord Hope comments:
“There can be a considerable amount of movement of drafts, because when you see what somebody else has written you may want to expand. Sometimes it’s extremely helpful if there’s a dissent. This makes you focus on your own points, and you may then wish to explain yourself more fully“.
The second major difference relates to the format that judgments are given in. As the Supreme Court is no longer bound by the traditions which tied the House of Lords in relation to the publication of judgments, it is open to the new Court to issue its judgments in whatever format it chooses – for example, in the manner of the Privy Council (where a single decision is issued in the name of the Board, with only dissenting opinions expressed separately), or in the manner of the European Court of Justice (which publishes a single judgment). Lord Hope points out that the Court has already followed the example of the Privy Council in a number of cases (for example, R (E) v Governing Body of JFS [2009] UKSC 1 and Re B (A Child) [2009] UKSC 5) where it has delivered a decision in the name of one Justice as the judgment of the Court. Lord Hope makes it clear, however, that he does not favour the European Court of Justice’s example: single judgments are “rather anodyne, anonymous” and do not contain “very much in the way of creative thought“.
The advantage of this approach is flexibility. Lord Hope emphasises the importance of allowing each Justice the freedom, if they feel so inclined, to give a judgment in every case. The intellectual rigour which results from permitting such independence of thought is one very significant element of the House of Lords’ practice which has continued into the Supreme Court:
“We respect each others’ views. We absolutely respect each others’ freedom to decide the cases in the way he or she thinks fit. … We frequently discuss each others’ drafts and make suggestions. But the crucial point is that nobody feels driven into a corner because his or her view is unpopular or is a minority view with which the majority strongly disagrees – that’s what we’re here for, to express our views. A minority opinion may turn out to be a leader opinion in future. There have been several striking examples of that happening in practice“.
Lord Hope also mentions with approval a number of developments of a more practical nature which have occurred since the new Court came into being. First, there is the re-casting of judgments, so that, instead of the judgments being printed in order of their authors’ seniority as was required in the House of Lords, the “lead” judgment is now printed first, making it easier to identify. As Lord Hope observes, this should avoid any misunderstanding as to which should be regarded as the “lead” judgment in cases where several judgments are given. He also supports the Court’s new-found ability to interact with the public, whether that is achieved by the publication of press releases on decided cases, the filming of hearings or enabling members of the public to see the Court in action.
In the two and a half months since the Supreme Court opened, it has already demonstrated that it will take advantage of its freedom from the traditions which hampered the House of Lords and develop its own ways. With Justices such as Lord Hope sitting in the Court, it seems likely that it will continue to move with the times.
Sarah Speller is a Litigation Professional Support Lawyer at Olswang.
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