The Supreme Court, An Interim Judgment
03 Wednesday Oct 2012
This article was written by UKSC Blog editors Dan Tench and Cathryn Hopkins for last week’s edition of Legalweek as part of an in-depth feature on the UK Supreme Court. It has been re-published on the UKSC Blog with kind permission.
With the Supreme Court having been operating for three years now, it has sought to present an approach and personality distinct from its predecessor, the Appellate Committee of the House of Lords. One cannot unequivocally say whether that mission has been wholly fulfilled, but considerable progress has been made.
Following the enactment of the Constitutional Reform Act 2005, pursuant to which the Court was established, Middlesex Guildhall was renovated to house the Court in a project that took two years and cost £56m.
In spring 2010, six months after the Court opened for business, legal commentators questioned whether the cost had been justified. The Court’s alleged lack of identifiable human faces and strong human rights cases led to the conclusion that it had not made its mark on the public conscience in the same way as, for example, the US Supreme Court.
Since then, More4 broadcast a programme on the Court (February 2011), Sky News launched a live video stream of court hearings (May 2011) and when Assange v The Swedish Prosecution Authority was heard (May 2012). Although a court hearing is yet to be broadcast on terrestrial TV, media interest seems to be on the increase.
Along with increased media interest, the Court is much more accessible to the public than its predecessor. The move to a separate, visitor-friendly building has attracted more observers to hearings, and an exhibition space, cafe and gift shop selling merchandise bearing the Court logo make the building more than just a collection of court rooms and gives the Court an identifiable brand.
The Court also provides assistance in understanding its judgments: seating plans and issue lists are provided at hearings and press summaries are released simultaneously with judgments. By comparison, the US Court is in the stone age – most apparent in the confusion that arose in July due to copies of the judgment not being readily available in its decision over President Obama’s healthcare legislation.
The certainty of judgments has improved, with the increased adoption of single or joint judgments rather than each justice providing an individual opinion. For example, in a recent decision, SerVaas v Rafidain Bank & ors, Lord Clarke gave a concise 17 page judgment with which the other justices agreed.
Another development is the increased use of larger panels of justices to determine cases. Previously, any departure from a five-member panel was a rarity. Now, due in part to the increased size of the court rooms, it is common for a case to be heard by seven and sometimes nine justices.
Such large panels can add to the gravity of judgment. But the larger the panel, the greater the likelihood of dissenting opinions. A study by Chris Hanretty of the University of East Anglia showed that the percentage of unanimous decisions in the Court had recently dropped from 80% to 75%.
In contrast to the US Supreme Court, the Court does not generally have the power to strike down primary legislation. This means that it remains less politically charged than its American counterpart. But judgments continually stray into areas of political controversy, particularly human rights.
So far, unlike its US equivalent, our Court has not generally been perceived as adopting a significant political agenda, although some sections of the media like to portray the Court and the judiciary at large as fussily upholding human rights over other concerns. Again, unlike the US Court, few of the justices are readily identifiable as conservative or liberal – although Lady Hale can perhaps be considered to be the Court’s safest liberal. And, if his extrajudicial lectures are anything to go by, newly appointed Lord Sumption may adopt the role of clearest conservative. His appointment directly to the Court from the Bar showed a new approach and attracted much more media attention than previous appointments. This in future may put greater focus on the abilities and political leanings of new appointees.
One difficulty for a court determining matters that are potentially politically controversial is that the process is essentially inter partes – the submissions are confined to the parties before the Court.It might be said that political matters are better determined at Parliament where the broadest possible range of viewpoints can be heard.
To accommodate this concern, hearings at the Court are increasingly being made with the benefit of representations from third-party interveners. One fifth of the cases heard by the House of Lords between 2005 and 2009 involved a third-party intervener – leading to judgments with arguably more general applicability and political relevance. Leading public law silk Michael Fordham noted mordantly that “it is as though the new court bore the following sign, etched into the glass at the entrance doors: ‘Public Interest Interveners Welcome’“.
But the Court faces other political pressures. It now has a separate budget granted to it by the Ministry of Justice, meaning that its funding is under the control of Government. At the House of Lords, the Appellate Committee’s funding was controlled by Parliament and combined with the rest of the House of Lords. Concerns have been expressed, not least by the justices, that such control of the budget is undesirable since it potentially puts in jeopardy the independence of the Court as regards Government. Nonetheless, there has been no indication either of the Government trying to exert any improper control over the Court through its control of funding, or any reluctance from the Court to challenge Government decision-making. But, particularly in times of austerity and budget cuts, the concerns remain.
So, while there has been no radical change in the role and presentation of the Court, it has gradually adopted a different approach. In time, it is likely to feel like a very different body to its predecessor.
The above article was originally published in the print and online editions of Legalweek on 28 September 2012.