Lord Phillips: Supreme Court judgment
27 Friday Jul 2012
This article, which is based on the final interview given by Lord Phillips before he steps down as Supreme Court president, has been published on the UKSC Blog with the kind permission of The Times newspaper and the Supreme Court Press Office.
Transparency, public access and independence are achievements to be proud of, the court’s first president says
Anyone wandering off Parliament Square into the United Kingdom’s Supreme court yesterday would have heard each of the justices giving a little summary of their rulings, in his or her own words.
The idea, says the court’s president, Lord Phillips of Worth Matravers, is that the man in the street can “wander in, knowing nothing about the case” and hear what it is about.
That is on top of press releases, judgment summaries — and, of course, most revolutionary of all, cameras recording the giving of judgments.
It is a far cry from the days when the law lords, or appellate committee of the House of Lords, sat tucked away in a remote room in a Palace of Westminister corridor. No member of the public would have ever chanced by then. This transparency and public access is one of the biggest changes since the Supreme Court, the United Kingdom’s first court (not just for England and Wales) was set up nearly three years ago,- coupled with the clear, physical re-location to emphasise the separation of the judiciary from the legislature or executive.
Has it worked? Phillips, in his final interview before stepping down as the court’s first president, is not one to blow his own trumpet, But it has been a success, he says. “It has done what it was intended to do: to bring into the public eye, the final court of appeal of the United Kingdom as an independent court, in a way which enables those who are interested to understand what it is that the court is doing.”
“It’s the last step in the separation of powers: it is desirable that judges should not just be independent but be seen to be independent: what been achieved by moving here is that the general public can see that those who sit in the Supreme Court are completely independent of those who sit on the other side of the square.”
That, he says, is its main achievement. “Over the last three years we have built firm foundations for a separate and independent Supreme Court and it works extremely well.”
Tens of thousands of people now visit the court a year as well as its website and judgments have been broadcast: television cameras are barred the rest of the courts in England and Wales. Critics at the time, including some senior judges, felt that the Supreme Court justices would set themselves up in opposition to Government and that their new position would give a rush of power to the head, prompting judicial activism in areas of public policy. That has not proved to be the case: they have not flexed their muscles any more, he says, than the law lords did — citing the landmark Belmarsh case under Lord Bingham of Cornhill (that terror suspects could not be detained without charge).
But that’s not to say there have been no changes. The most important development, he believes, is the relationship with Strasbourg, citing the court’s clash (he does not call it that) over the use of hearsay evidence. This has set down a marker for a new approach. The Supreme Court dissented with a Strasbourg ruling; it went back to Strasbourg’s Grand Chamber and the judges thought again. This kind of dialogue is how things should be, he says.It was the first time that the court had resisted but there have been others since.
There had been a tendency to apply Strasbourg decisions “as though they were binding precedents” But it is important that the UK Supreme Court should have its say. “I would like to see a dialogue between our court and Strasbourg continue in this way, so that we take account, as we are bound to, of Strasbourg jurisprudence, but that when we consider that it is perhaps a good idea to reconsider one of their decisions, we don’t slavishly follow it, but explain why we are not, so they can then look at it again.”
Phillips defends the Human Rights Act and says the current act is a “pretty good statute.” As for the current debate, people wanting a British Bill of Rights have different objectives. But he says: “I don’t espouse the objective that we ought to be doing our own thing. I think dialogue with Strasbourg is the right way to do human rights.”
Judges, he concedes, have a key role in how the Act is applied, a role in “revising” it. “The Act requires us to interpret and give effect to the legislation in a way that is compatible with the Convention: so you are getting the Supreme Court re-writing legislation around the edges, not so as to change the thrust of the legislation but to make it compatible, by stretching the language a bit or implying some words that are not there…that is something that has everyone’as approval. Ministers prefer it rather than have it chucked back to them and have to re-address the legislation. “To an extent, he adds, the court is “sanitising the legislation to make it compatible with the Convention.
As for how the justices do their work, Lord Phillips believes there is a more collegiate approach to judgments, involving more discourse between the justices and sharing of views. It has meant judgments taking longer to produce. The law lords would go their own way, writing independent judgments, with little prior discussion. That “”cross fertilisation before judgments are set in stone” takes time, but the upshot is a bettter quality of judgment, he says, even if has not necessarily meant more single judgments, as some had hoped. But many of the judgments are finely balanced (the”immensely important” ruling on the admissions policy of the Jewish Free School is one)and so it is unsurprising that several justices want to express individual viewpoints.
Some critics have said that Phillips should have been tougher in controlling remarks by justices in their judgments that are outside the main thrust of the decision; or even making political speeches. But, Phillips says, they are independent judicial office-holders and he cannot tell them what to do. He is careful not to crticise what any of them have done — they have exercised discretion, he says; but notes that when he took over as president, he was the “new boy”, parachuted into the top job, and those already there had a view that the way they did things was the right way. “So changes were not easy.”
There is some unfinished business. Too much time, he argues, is still spent in court compared with out of it, in discussion and preparation. “I don’t favour time targets, as in the US Supreme Court, but we could perhaps sped a little less time in oral argument.”
More women are needed in the higher judiciary and City law firms need to encourage their partners to go for judicial work as “part of a “public duty”, he says.
What will he be remembered for? He cites court dress or his efforts to “change judges’ uniform”. The new gowns in place of wigs, bands and gowns still divide opinion. But in the Supreme Court, he says, counsel can ask not to wear their robes and they almost always now do. So “it is too early to say; some lawyers are very conservative and things can take quite a long time.”
Overall, he modestly doubts if he will be remembered for anything, other than being the first president of the Supreme Court. But it was not just “happenstance”, as he insists. Phillips, a former Lord Chief Justice and Master of the Rolls had modernising instincts which fitted the new era of openness, intellectual abilities aside.
As for the future, the biggest challenge remains”the relationship between the Government and judiciary”, preserving judicial independence. That challenge he shortly hands over to Lord Neuberger of Abbotsbury — but not before a holiday that takes in Frances, the Dolomites, South Africa and Mozambique and being sworn in as the new president of the Qatar international court and resolution centre.. He also plans to will sit as an arbitrator and as a judge in Hong Kong’s final court of appeal. Phillips, frightening fit at 74, is giving up as top judge but is not, he says retiring. No one would be any doubt about that.