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This is the second of two book reviews featured by the UKSC Blog this December, on titles relevant to the UK Supreme Court and which readers may wish to enjoy over the Christmas and New Year break.  In this review, Emma Boffey, UKSC Blog Editor and a senior associate in the disputes team at CMS, shares her review on “A Court of Specialists: Judicial Behavior on the UK Supreme Court” by Professor Chris Hanretty, Professor of Politics, Royal Holloway, University of London and published by Oxford University Press in June 2020. 

This is, by its own admission, not a book about the law.  Yet, we think it will be of interest to almost all followers of the UK Supreme Court.  Unlike the primary focus of this Blog, it deals not with the appeals the court hears, but with the behaviour of the people at the heart of decision-making in the Court: the UKSC Justices.  It is a treatise on how the Justices behave and what influences that behaviour.

Rooted in the methods of political science, the book is introduced by Professor Hanretty explaining what political science as a discipline can teach us about how the UK’s highest court operates.  In his inimitable style, Professor Hanretty takes the reader through various aspects of the court’s decision making process – from how cases are selected to be heard, to who hears them, and their final outcome – to argue that how the Justices behave is strongly influenced by their respective specialisms.  Unlike their US counterparts, Hanretty finds that individual personal politics of the Justices are unlikely to be a strong influence in the UK Supreme Court, but their prior legal specialism is.  A court of specialists is how Hanretty sees the composition of the current UK Supreme Court.

So far, so obvious: it might be thought trite that if one had worked in a particular field of law for most of one’s life, they will have a natural tendency to wish to hear the important appeals in that area.  Hanretty’s analysis extends beyond that however: through the methods of political science, he is able to discern collective preferences for particular types of litigant at different stages of the court’s decision-making.  Extrapolated out, if one is able to discern a preference for, say decisions of government bodies, among particular individual Justices, or groupings of them, the composition and leanings of the panel to hear each appeal becomes all the more important, particularly as the Court hears more of what Professor Alan Paterson has dubbed the “close-call” cases (see A. Paterson, Final Judgment, Bloomsbury, 2013).

A work of quantitative social science, Professor Hanretty tries to explain judicial behaviour through a series of relational models.  While one might fear the detail behind these scientific models becomes somewhat inaccessible for a non-specialist readership, Hanretty is able to set out his findings in a compelling and gripping narrative, explaining why this all might matter to those who are interested in and follow the work of the UK Supreme Court.

The analysis surrounding the permission to appeal stage, and governmental actors’ tendency to enjoy success at this stage, will be of interest to many, though it remains slightly unclear why the government should prevail more often than not (other than perhaps some evidence of the UK Supreme Court Justices preferring to give the government another chance to argue their case at this stage). Hanretty concludes that the size of a panel for any particular appeal may not be as important as its composition and expertise: his findings suggest that presiding judges don’t seek to choose like-minded judges.  He does find however that cases are not assigned evenly among the population of Justices, nor randomly.  Specialisation is a strong influence on the composition of Justices hearing each appeal.

Why does this matter?  Roughly half of all the cases decided by the UK Supreme Court have a single substantive opinion.  It is not a court of rife dissent.  Judgments comprising multiple opinions – as were more common perhaps 30-40 years ago in the Appellate Committee of the House of Lords – are now relatively rare in the UK Supreme Court.  If the prevailing method of delivery of its decision-making is single judgments, it therefore matters a great deal who writes that lead opinion, both for the litigants contesting the appeal, but also for the development of the law as a whole.

Hanretty finds that style, expertise and rationale all matter when it comes to deciding who writes.  And again, he finds that specialisation in that particular area of law leads to a greater chance of writing the lead opinion.  Interestingly, the text finds that dissent is more likely in larger panels.  It is also appears to be more likely where two or more specialists find themselves on the same panel: the supposition being that a sole specialist may end up writing the lead opinion, facing little disagreement, but multiple specialists increases the opportunity for informed disagreement and therefore, dissent.

Dissent on the UK Supreme Court is described by Hanretty as being of particular interest to political scientists.  Perhaps because it is rare (less than 8% of UK Supreme Court cases will feature a dissent), Hanretty’s models do not conclusively point to determining factors in predicting its variance.  Hanretty finds that specialism is more likely to lead to dissent, both because it makes individual judges more likely to dissent, but also because it gives opportunity for two specialists to disagree.

Politics (with a small p) also has some influence when examining dissent: Hanretty’s models suggest a left-right divide has existed on the Court between, for example, Baroness Hale and the late Lord Kerr on one hand, and Lords Brown, Rodger and Sumption at the other end of the spectrum.  Statements that the UK Supreme Court is not political, thus must bear some qualification.  While the pattern cannot be observed in all cases the UK Supreme Court hears, it is discernible in a sufficient body of appeals to suggest that it exists and is not merely de minimis.  Hanretty notes that the description of judges as not being political amounts to the same as the suggestion they are not law-makers: a fairy tale, told to ourselves in order to avoid the difficult questions we might broach in considering judicial decision-making and behaviour.  Hanretty does not suggest that the Justices are consciously aware of these factors – there is no “gotcha” moment in this work – but his research suggests that the patterns evident from decision-making in the UK Supreme Court are important for everyone to understand and make sense of.

Hanretty’s A Court of Specialists paints a picture of the complexity of human decision-making and how political science identifies what factors might influence future judicial outcomes.  Specialisation of the Justices is just one such factor, but a very important one.

It is a commendable read: detailed, interesting and retaining a charming human touch, amidst the impressive presentation of data models.  One can easily become immersed in the statistics, figures and models, but the human importance of the Court’s work is never far from reach.  The striking cover of the book, reproduced from the work of Isobel Williams, depicts an image of counsel for the late Tony Nicklinson addressing the Court during the appeal of R (Nicklinson) v Ministry of Justice [2014] UKSC 38, the assisted suicide appeal.  Its inclusion on the cover reminds us that the work of the UK Supreme Court deeply matters to us all.

We would like to take this opportunity to wish all readers of the UKSC Blog a happy Christmas and a restful New Year.  We will look forward to returning with more coverage of the work of the UK Supreme Court in 2021.