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The second and third runners-up of our UKSC Blog Essay Competition 2013, run in partnership with the Supreme Court and The Guardian, were Bangor University LLM student Lucas Ford and Lancaster University LLB student Adam Coomer. Highlights from their essays are set out below.
Whilst all of our shortlisted entrants chose to answer the ‘Rogue Justice’ question, we thought that Matt McGhee, a current BPTC student at Kaplan, wrote the best essay on our other question. Extracts from his essay are also highlighted below and the full text of each of the three essays is available in pdf format by clicking the names above.
Rogue justice: do we need more or fewer dissenting voices in the UKSC?
Ford’s essay, entitled More Cokes, fewer Vogons, drew an interesting comparison between Supreme Court judges and a fictitious alien race to argue the case for greater plurality of judgments:
“Anybody who has read Douglas Adams’ The Hitchhiker’s Guide To The Galaxy will be familiar with the Vogons. The Vogons are characterised as an extremely bureaucratic race who adore conformity and loathe anything which is noticeably fresh or imaginative. Historically our court rooms here in England have been dominated by Vogon-like judges whose faith in certainty, conformity and deference is beyond compare. However, despite their historical dominance, these Vogon judges are not the judges we celebrate or champion today. The judges we celebrate and champion today are those cantankerous and uncooperative sorts who, in eschewing Vogon certainty and conformity, punctuated the pages of English history with the occasional extraordinary dissent.”
His argument was based on the Millian doctrine that it is only through robust and direct challenge that the real strength and truth of views can be ascertained:
“Far from threatening the majority view, dissenting judgements improve it… In dealing with express challenges to their own thinking, the judges of the Supreme Court can ensure that their own judgements are much more convincing and refined as a consequence.”
Lord Brown described Ford’s essay as “commendably robust” and awarded him the position of second runner-up.
Coomer’s essay challenged the question itself in arguing that neither more nor fewer dissenting voices were needed:
“. . . my submission is not that there should be ‘more’ or ‘fewer’ dissenting judgments, but that the search for some kind of optimal frequency of dissenting judgments is itself an impossible objective. Instead, if we understand the true value of dissent in our legal system then the frequency of dissent becomes sidelined as a necessarily elastic value of only passing interest.”
Like Ford, Coomer also drew an interesting analogy (this time to politics):
“We might even be able to characterize dissenting judgments as occupying a constitutional role similar to the opposition party in government. The opposition might not have the power to express its views and contentions directly into law and policy, but its role is still important. Disagreement is fundamental to democracy, specifically deliberative democracy, that which follows from the representative democracy which often seems to be the totality of the democratic idea in the public mind.”
In commending Coomer’s “interesting ideas”, Lord Brown awarded him the position of third runner-up.
Judging the Constitution: What role should the UK Supreme Court play in determining the constitutional law of the UK?
McGhee’s essay discussed the possibility of the implementation of a ‘British Bill of Rights’ and the extent to which “the Supreme Court would still be able to use its current principles as a springboard from which it could continue to apply central ideas of procedural fairness, equality and respect”.
He then moved on to consider the process by which the Supreme Court might come to be regarded as the UK’s ‘constitutional court’, noting:
“An explicit constitutional amendment would not be required to convert the Supreme Court into the UK’s constitutional court; the decision of Marbury v Madison was the watershed moment in the USA, and a similar decision might be made in the UK in due course.”
McGhee concluded that “[w]hat function the Supreme Court component has within this mechanism will be discovered as judicial spotlights are pointed increasingly into its depths, and it will remain to be seen whether the Court will continue taking up the mantle of a constitutional court as it does so”.
Thanks again to all entrants of the essay competition this year.