UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

This morning, two of my fellow editors and I attended a press briefing in the Lawyers’ Suite of the UKSC.  The briefing was given by Lord Neuberger and Lady Hale who spoke about, amongst other things, the work of the court to date, and the role it plays in our constitution.  A question and answer session then followed.

The briefing started with Lord Neuberger commenting on his initial reservations about the creation of a Supreme Court in the UK, saying that he and others had been concerned “that the move from the House of Lords to the Supreme Court could cause the court to become more proactive – more political, if you like – and more like the US Supreme Court”.

He is, however, clearly very proud of what the UKSC has achieved (he is “glad to say that such concerns have proved groundless”).  Reflecting on his first year as President of the UKSC, Lord Neuberger noted that 82 cases had been heard by the UKSC during that year.  He commented on the court’s commitment to quality, and the fact that a number of cases heard by the UKSC over the past year have been of considerable public interest (referring in particular to R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another, Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General and Bank Mellat v HM Treasury). 

The court’s external profile is obviously something that the Justices, and indeed, all the staff of the UKSC, value highly.  Lord Neuberger highlighted how accessible the court has become to members of the public, citing the increasing number of visitors to the court, the publication of hearings on YouTube and the case summaries that the court publishes as examples of this.

Lady Hale’s turn to speak began with her saying how she was “honoured and delighted to have been chosen as Deputy President of the Supreme Court”.  She spoke of her support of the creation of the UKSC as an institution which is “visibly independent both of the Government and of Parliament and much more open and accessible both to the press, the media and the public who we serve” and playfully referred to accusations that the Guild Hall had been stripped of its robust masculinity upon becoming the UKSC, commenting “as a woman, I am really quite pleased about that.  I think some femininity, even in a court building, is not inappropriate” (the transcript of the briefing records “laughter” at this point).

Never one to shy away from the controversial issue of diversity in the judiciary, Lady Hale spoke of her disappointment that since she was made a Law Lord 10 years ago, no other females have been appointed to the UK’s highest court.  She noted that things are improving at the lower ranks of the judiciary, but that this has not yet spread to the upper end.  Speaking candidly, she said “I do not think I am alone in thinking that diversity of many kinds on the bench is important for a great many reasons, but most of all because in a democracy which values everyone equally and not just the privileged and the powerful, it is important that their rights and responsibilities should be decided by a judiciary which is more reflective of the society as a whole, and not just a very small section of it”. 

The Justices were then asked about various issues, including what their thoughts are on whether witnesses and advocates should be allowed to wear veils in Court (to which their diplomatic response was that it would depend on the circumstances, and they couldn’t prejudge whether it would be appropriate in any given case), whether they thought members of the judiciary should be elected (the answer to which was a resounding no – Lord Neuberger explained that in his view judges needed to be free to make unpopular decisions without the fear of not being re-elected) and whether Counsel and Judges dressing in wigs, robes and gowns should be a thing of the past (which split the views of the Justices somewhat: Lord Neuberger said that he wasn’t wedded to the status quo, but that he couldn’t see how any of the alternatives would gain sufficient support to justify a change in tradition, whereas Lady Hale made clear she isn’t a supporter, saying “My main objection is that they are men’s wigs”).

The possibility of the Human Rights Act being repealed was touched upon several times.  The Justices were careful not to speculate, but the fact that they value the Act and the tools that it provides (“the difference that the Human Rights Act made was to give us two tools, one of which was to interpret legislation consistently with the Convention rights, and the other was to declare legislation incompatible in the circumstances”) was apparent.

Lord Neuberger also talked of his concerns about the legal aid cuts.  He outlined what he sees the purpose of legal aid as being (“in general legal aid is what ensures that the most underprivileged people in society…get a proper hearing”) and the impact that the cuts could have (“rights…are valueless if they cannot be enforced in court”), although recognised that the government is trying to deal with economic problems which, as he put it, “inevitably lead to cuts in all sorts of areas”.  He emphasised that judges and the legal profession have a duty to do their best to deal with the problems that may be caused by the cuts.

Their responses to questions about closed hearings illustrated the Justices’ commitment to openness and transparency.  Discussing the necessary balancing act that needed to take place, Lord Neuberger commented “Going into closed session in the sense that the public and journalists are excluded is contrary to a fundamental principle of justice.  Going into a session where you hear one party and the other party and his or her advisers are excluded is even more contrary to the notions of justice.  It is a classic question of the rock and the hard place.  If you go into such a session you feel you are doing something which every fibre of your being says is wrong.  On the other hand, if you do not do that and the government (because it is normally the government) has some evidence it needs to put in in order to achieve justice, if you do not have a closed session and that evidence cannot be produced in open court, then you are not going to do justice because the evidence is not going to be produced because it cannot be produced in an open hearing.  One is conscious that whatever decision one makes is going to offend some basic principle”.

After the briefing, the three of us went to have a coffee in the court’s café (walking past members of the public, journalists and a group of teenagers on a school trip on the way) to discuss the morning’s session.   We agreed that the briefing, which touched on wide-ranging issues concerning the UKSC, affirmed in our minds that the move across the square had indeed resulted in the increased accessibility and transparency of the court, and that it was clear from listening to Lord Neuberger and Lady Hale that the openness of the UKSC was something the Justices continued to strive for.