Article 50 Hearing – the Justices
02 Friday Dec 2016
A memorable pre-Christmas battle is expected as The Secretary of State for Exiting the European Union defends his right to carry out the Government’s instructions in the Supreme Court. But what can we expect from a court with a self-declared purpose to concentrate on cases of “the greatest public and constitutional importance”? It is difficult to conceive of a case that better fits this description than R (Miller & Anor) v Secretary of State for Exiting the European Union. Adding to the sense of theatre is a symbolic backdrop in which the Supreme Court represents a separation of the UK’s final appellate court from the legislature on the opposite side of Parliament Square. On the legal issues alone, Miller represents a significant decision on the prerogative of Parliament and Government to alter the rights of British citizens and it could well be the case that defines the Supreme Court for years to come. At the very least it is a case that has put its Justices in the spotlight.
The Justices are each appointed to the Supreme Court as revered legal brains in their own right, and their diversity of outlook is likely to generate fascinating debate. Below, we profile a selection of the most prominent Justices and consider their potential outlook on Miller.
Lord Sumption has a strong record from his pre-Supreme Court days as a barrister in acting in high profile disputes, and in particular representing UK secretaries of state. In 1999 he advised Jack Straw, then Home Secretary, in a High Court challenge over the attempted extradition of former Chilean dictator General Pinochet to face criminal charges in Spain. In 2003 he advised the UK government during the Hutton inquiry and the Royal Household in its privacy battle with the Daily Mirror. And in 2005 he acted for former Transport Secretary Stephen Byers over Railtrack’s nationalisation in the largest UK class action ever brought.
Lord Sumption has commented negatively on the development of EU law. In his 2011 lecture “Judicial and Political Decision-Making: The Uncertain Boundary“, Lord Sumption used the European Communities Act 1972 as an example of Parliament acting in a way that undermined the “democratic element” of the constitution.
He separately criticised the democratic deficit produced by the application of the European Convention on Human Rights:
“The difference between the treaties constituting the European Union and the Human Rights Convention is that one can properly speak of the European Union as a pooling of sovereignty in relation to certain matters, in much the same way as the Act of Union with Scotland was a pooling of sovereignty in relation to everything. By comparison our adherence to a Convention whose meaning is highly elastic and dependent on policy formulated by a supra-national judicial tribunal, is not in any meaningful sense a pooling of sovereignty. It may or may not be a good idea. But there is no point in denying that it removes important areas of policy from the domain of democratic accountability, whether at national or supra-national level.”
Whilst Lord Sumption seems to appreciate that sovereignty may be delegated to EU institutions by Parliament, he is uncomfortable with such powers being divested to judicial bodies. He has also criticised the European Court of Human Rights’ discretionary approach to its Convention which it describes as a “living instrument” to be interpreted in light of “evolving social conventions“.
Lord Sumption is wary of an approach in which the judiciary as legal arbiter over-extends itself and becomes creator of “judge-made” laws. Indeed, he believes that the judicial process should not encroach upon the sphere of moral and social issues assigned to politicians as the judiciary’s terms of references are simply inadequate. In a lecture entitled “The Limits of Law“, given on 20 November 2013, Lord Sumption stated: “In deciding where the balance lies between individual rights and collective interests, the relevant considerations will often be far wider than anything that a court can comprehend simply on the basis of argument between the parties before it. Litigants are only concerned with their own position.”
Lord Sumption’s caution over judicial intervention suggests that he may be on the side that would allow the Government’s appeal.
Lady Hale is renowned for her strident liberal and humanitarian views. Her most significant judgments have included upholding the protection of psychiatric patients from forcible treatment, a rebuttable presumption that co-habiting couples own equal share in a property, and finding that soldiers overseas in Iraq have the protection of human rights.
In terms of her constitutional principles, Lady Hale made the following obiter comments on Parliamentary Sovereignty in the House of Lords case on the validity of the Hunting Act 2004 (Jackson and others v Her Majesty’s Attorney General  UKHL 56, para. 159):
“The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything. The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny. Parliament has also, for the time being at least, limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998. It is possible that other qualifications may emerge in due course. In general, however, the constraints upon what Parliament can do are political and diplomatic rather than constitutional.”
That is, Parliament can do what it likes, with the proviso that where it trespasses on individuals’ fundamental rights, it must be extremely clear that it is doing so. Indeed, Lady Hale has interpreted Parliament’s will against the restriction of rights even where there are strong arguments that that is not the correct interpretation. In R (on the application of Nicklinson and another) v Ministry of Justice she considered the prohibition under the Suicide Act 1961 to be incompatible with the right to private life under the ECHR stating: “We do have jurisdiction, and in some circumstances an obligation, to form a professional opinion, as judges, as to the content of the Convention rights and the compatibility of the present law with them.” If Article 50 is understood to alter the rights of citizens, based on her previous judgments it is unlikely that she will find that the Government on its own is able to effect that alteration. Following her judgment in Nicklinson, Lady Hale is likely to be) among the most forthright of the Justices when it comes to the court’s willingness to intervene where fundamental rights are restricted as a result of triggering Article 50.
Lord Neuberger, President of the Supreme Court, has made similar statements to Lady Hale that Parliamentary Sovereignty is absolute. For example, in a lecture entitled “Who are the Masters now?”, given on 6 April 2011, Lord Neuberger said the following:
“…the idea that Parliament is no longer legally sovereign and that the judiciary, whether at home or in Strasbourg, are the masters now is quite simply wrong… we should never overlook our primary duty in every case, which is to decide each case according to the law, and we should never forget that, however we develop or apply the law, we cannot go against Parliament’s will when it is expressed through a statute“.
Lord Neuberger’s caution on the matter of interference in legislation appears to be very different to his views on reviewing the Government’s actions. In giving oral evidence to The Select Committee on the Constitution on 25 June 2014 Lord Neuberger said: “for the courts there is no more important function for upholding the rule of law than controlling the excesses of the executive, and protecting individuals against the executive.” This suggests that Lord Neuberger may have some reluctance to permit the Government to proceed with triggering Article 50 without Parliamentary approval given its assumed impact on the various categories of individual rights.
Lord Mance is also known to advocate what he termed “Parliamentary supremacy”. He described it as a “basic constitutional principle” in a 2013 lecture, “The Interface between National and European Law“. He also provided a reminder that inconsistencies between UK and EU law are only as a result of Parliament’s own revocable decision to enter into the European Communities Act 1972. Again, the constitutional opportunity for the UK Government to recover power from EU institutions by triggering Article 50 may clash with the principle of Parliamentary consultation.
The other justices
A further element in Miller is the issue of devolved nations. The Lord Advocate for the Scottish Government and the Counsel General for Wales have been granted permission to intervene in the appeal, and the Attorney General for Northern Ireland has made a reference to the Court regarding devolution issues. Lords Hodge, Reed and Kerr are likely to utilise their Scottish and Irish legal backgrounds to address issues of the inter-relationship of national laws and devolved institutions.
The bench of eleven
The Justices are elected to the Supreme Court on the basis of their general legal ability, rather than their specialist knowledge, and an appropriate panel is chosen by the court Registrar in each case. Supreme Court decisions are intended to be a balanced consideration of legal principles, with the factual issues fully considered by a lower court. This theoretical demarcation has however been infringed by the increasing judicial obligation to consider social and moral issues under the Human Rights Act 1998.
For the Miller appeal, the Supreme Court has made the unprecedented decision to sit en banc with the full “bench” of eleven Justices set to consider it. Sitting in larger panels of between five and nine judges has been a growing trend in House of Lords and Supreme Court cases. This is particularly true of cases of public or constitutional importance although it is difficult to discern any other consistent reasoning. Seven Law Lords heard the General Pinochet extradition appeal in 2000, and nine heard the House of Lords appeal on the validity of the Hunting Act 2004 in 2005. Sitting in larger panels has been a trend since the Supreme Court was established,. It is also considered to enhance the status of subsequent judgments and has traditionally been employed to deflect accusations that a smaller selected panel may have influenced the outcome.
The en banc scenario has occurred in part because of the retirement of Lord Toulson in July this year. The panel must at all times be made up of an odd number to prevent deadlock. Lord Toulson’s departure meant that the panel of Justices was reduced from twelve to eleven; so the appeal could proceed en banc without the possibility of six Justices dissenting against the other six. However, even without providing a selected panel for the Miller appeal, certain Justices have faced calls to opt to stand aside and not to hear the appeal as a result of their perceived outlook.
Reaching their decision
Sitting en banc will also add an intriguing aspect to the Justices’ out-of-court interactions. The Supreme Court is noted for its “collegiality” and collective decision-making, with the objective to produce the “right answer in law” rather than insisting on recording the individual views of each of the panel members. This has resulted in an estimated 16% of cases being the subject of a change in outcome between the first judicial conference following the end of a hearing, and the eventual decision agreed for final judgment. This commitment to teamwork is such that 55% of Supreme Court judgments in 2013 were single majority judgments, with disagreements and dissenting judgments apparently deemed unnecessary.
Lord Neuberger in his time as President of the Supreme Court has encouraged the habit of the Justices discussing their views on a case before, during and following a hearing as part of a unique decision-making process. The interaction is often influenced simply by the proximity of the judicial offices in the Supreme Court building, and the “open door” policy occasionally employed to discuss points of law. Three of the junior Justices’ offices are located on the second floor, five Justices are in contiguous offices on the top floor and Lord Neuberger and Lady Hale as Deputy President are also in adjacent offices on the top floor. The habit of dropping into a neighbour’s office could create splinter groups among the Justices, or alternatively produce a convoluted and slightly solemn corridor game as the Justices’ reach their final decision over the Christmas period.
- Buxton, “Sitting en banc in the new Supreme Court”, Law Quarterly Review 2009.
- Tomlinson, Rylatt and Fairgrieve, “And Then There Were Eleven: Some Context on the Supreme Court Sitting En Banc in the Article 50 Case”, U.K. Const. L. Blog (9 Nov 2016).
- Paterson, “Decision-making in the UK’s top court”, Cambridge Journal of International and Comparative Law (2014).