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, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

The first runner-up of our UKSC Blog Essay Competition 2013 , run in partnership with the Supreme Court and The Guardian, was Cambridge student Michael Green.  This is his entry.

Rogue justice: do we need more or fewer dissenting voices in the UKSC?

The reasons for and against allowing dissenting judgments have been well documented – perhaps most lucidly by Justice William Brennan delivering a lecture in 1985. Fresh eyes on a legal issue may serve to sharpen the focus of the debate; the lone voice, whilst not immediately accepted, may ‘sow the seeds for a future harvest’ (recalling for instance Lord Justice Denning in Candler v Cane, Christmas & Co). The dissentient may alternatively prompt the majority to reflect more critically on their conclusion, resulting in a more concise, watertight product of law. These benefits can be summarised as helping to foster a more nuanced understanding of the law, both in its present and future form, by making a contribution to the marketplace of legal ideas.

Others, setting up camp where the grass is ostensibly greener, suggest dissenting judgments undermine the clarity of a decision; harm the integrity of the court, and are best avoided in the setting of a criminal judgment, lest salt find its way onto an already open wound.

These arguments are well rehearsed and can be found in the literature elsewhere. But in line with Lord Kerr’s more recent contribution to the topic, this piece will avoid over-intellectualising the practice. Instead, in framing ‘the debate about the propriety of dissent’, this commentary will focus on what approach (normatively speaking) should be taken in the future of Supreme Court practice, in light of foreseeable developments affecting the machinery of justice. It will be suggested that, if Lord Kerr is indeed correct and judges dissent ‘for…the seemingly banal reason that they have decided that their view is right’, the less appearances the dissentient can make in the final court of the land, the better. Three reasons are suggested, but to appreciate them a brief survey of background context is essential.

First, the incumbent Supreme Court President Lord Neuberger has consistently signalled that the future of the justice system, in order to remain relevant to the public, must be as accessible and clear to the citizen as possible. The issue of accessibility is being addressed in several ways, for instance through the broadcasting of the Court’s work; the growing tendency for judges to make public appearances, comment in the media, and generally reap the benefits of a post-Kilmuir world. The concern about clarity is more deep-rooted, because to some extent the length and obfuscation of English judgments is systemically linked to the common law process. This poses an acute problem in light of current trends to cut to legal aid, as an influx of self-represented litigants, unfamiliar with the law’s intricacies, will be heading toward the doors of the justice system. Dissenting judgments, whilst icing on the cake for legal academics and practitioners, ignore how (to use Neuberger’s terms), ‘the public are the real audience…[and] judgments must be capable of speaking clearly to a lay audience’. The dissenting voice, as will be suggested below, can now find its place elsewhere.

Much connected to the first point, as the judiciary ventures into the public space more frequently, taking on a greater practical (and perhaps more political) significance to the layman, the body may slowly gain a status of accountability traditionally associated with the other two branches of the State. But with this may come the need for a greater appearance of unanimity in the final court, lest public confidence in the Supreme Court’s capacity (especially symbolically) to articulate the law with efficacy is shaken. This is not to say the dissenting voice should be silenced in the name of a contrived public face – but rather that most dissenting judgments should now be relocated elsewhere, as discussed below. The suggestion here is that, should the future of justice involve a more directly accessible face, it should (perhaps like the Cabinet) present a voice that carries with it a sense of control and clarity – and especially so Supreme Court judgments.

Finally, Lord Neuberger has commented how ‘I think, EU and Human Rights law have also had an indirect effect on our thinking – leading, for instance, to a more principle-based, as opposed to precedent-based, approach by judges when it comes to deciding cases’. If this is indeed the case, then the relocation of the dissenting argument elsewhere will be a move more in line with certain Continental approaches. Systems overseas even with a total prohibition on the practice, such as France, do not suffer from a consequently overregulated (or more accurately, monopolised) marketplace of legal ideas; instead the pool of legal thought often sources itself from the scholarly literature.

Which leads to the question of where exactly the dissenting voice belongs today in the evolving English legal system. Not in Supreme Court judgments, where avoidable, it has been argued. Instead, the marketplace of legal thought can be preserved by transferring the dissenting voice to extra-judicial channels, such as lectures and articles authored by judges. The increasing influence of academic commentary upon the common law’s development is a topic that has been addressed (and indeed acknowledged) by three judges in recent times: the late Lord Rodger, Lord Neuberger, and Justice Beatson. By relocating dissenting arguments into this novel source of secondary law, the integrity, authority and clarity of published judgments may be strengthened, without depriving the legal marketplace of worthy ‘fertilisers of thought’. At the same time the justice system can prepare itself for changes soon to come.

This is the argument – that when viewing the current circumstances of the British constitution more broadly, the dissenting voice should move itself to a new forum, making way for a modern twentieth-century judgment designed for litigants needing something as concise and comprehensible as possible. This is not to suggest a total prohibition on the practice within judgment however. Instead it should be up to the prospective dissentient to consider whether, on balance, and in light of the considerations of clarity above, the merit of his or her view demands that it carry the symbolic importance of being voiced in the Supreme Court, alongside the majority’s conclusion.