Lord Phillips’ Times Interview: “One year on: a supremely quiet revolution”
28 Thursday Oct 2010
UKSC Blog Features
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It was derided by critics as “dreamt up on the back of a fag packet”, a frivolous luxury that even recently featured on the leaked putative bonfire-of-the-quangos list.
It is just one year since the UK’s Supreme Court opened its doors for business in purpose-designed premises in Parliament Square. New building, new name and new constitutional status making it separate, unlike the law lords, from the legislature. In reality, what has changed?
Lord Phillips of Worth Matravers, the President of the court, admits that there was “not 100 per cent enthusiasm” initially from the justices. “The House of Lords [where the law lords used to sit] was quite an exciting workplace and we met with lots of people in the course of our daily lives.” But, he says, “within 48 hours, their mood had changed”. Everyone is now won round.
That is not surprising: the £60 million refurbishment of Middlesex Guildhall gave them facilities they had never had in the Palace of Westminster — a library, decent rooms including a conference room, and a dining room.
“We talk to each other,” he said. “In the House of Lords we were all strung out down a long corridor and it was not that easy to talk.” The only communal area was the library and that was often occupied. Now they meet once a month to discuss business as well as cases and “operate as a collegiate body”, he says.
If they have lost the traditions and trappings of the House of Lords, they have modern facilities and natural light. “It doesn’t feel as though we are part of history in the way it did when we went through the lobby of the House of Lords to the committee room and where Members of Parliament are going about their business.
“Here, we are in a modern building where we spend 100 per cent of our time on our work. We do feel we are in a 21st-century court with the advantage, for instance, of room for judicial assistants [eight rather than four] … in the House of Lords they were stuffed up into a miserable garret.”
Inevitably, there have been teething problems. It took a while, he says, to get the acoustics right. Judges on the wings of the Bench were quite a distance from the advocates and had difficulty hearing them. But the practical benefits of the building outweigh the loss of mingling with parliamentarians.
One hope was that the court would become known to the public, unlike the law lords. “We are very keen to have a higher profile, although not particularly keen to turn ourselves into public figures. But one of the objectives [of the reform] was that we would be doing our job transparently, independent of government, and that the public should be aware of our existence and of the importance of our role.”
To that end, the court has encouraged visitors, including schools and from abroad — with success. In August there were 900 people a day. The court also has an exhibition centre and website, receiving 19,000 visits monthly.
More significantly, in a first for any UK court, proceedings are routinely filmed and footage made available to broadcasters. The takeup has been a disappointment, Phillips admits. “The press was always on at the judges saying: ‘Why can’t we film what happens?’ Now you can, and you never do.”
The court’s decisions have been televised only six times. But Phillips accepts why. “If we were like the US Supreme Court where hearings last half an hour, with judges firing off on all cylinders with questions to the advocates, it’s high drama and good television.” But with hearings of three to four days, and plenty of analysis, people “might not hit the most exciting moment”.
With its name and location, people predicted that the court would become more activist, pushing the boundaries of the law. Phillips says that has not happened. The aim, he insists, was to continue as before. “Nothing has changed radically.” Second, the law lords were quite bold as it was; the new court has not been “more or less bold”.
Yet there have been changes — if not dramatic. Crucially, from the public and press viewpoint, summaries in clear, simple language are issued with each ruling, so that people can understand what decision has been made.
Single judgments for the majority opinion now also happen in some cases. “Nothing happens overnight,” Phillips says. “All members of the court are powerful individualists. They have their own ideas about how they want to do things. But there is agreement that, where possible, we should reduce the number of individual judgments.”
The lead judge does, however, now give the lead judgment. In the House of Lords, opinions were given in order of seniority, whether the lead opinion or not. But it remains important, he says, that judges give their own judgments where there are genuine differences of view, such as is likely over human rights and the state or security issues.
The court regularly sits seven or nine justices (seven in ten cases and nine in five). And, in another reform, sitting as the Privy Council, the justices are about to hear their first appeal with only electronic evidence, because of the volume of material in the case.
There have been some hiccups: first over appointments. Phillips will not be drawn on the non-appointment of Jonathan Sumption, QC, after lobbying by senior judges against him, save to say that he and his appointments committee “played it by the book” and there was “no ministerial involvement”, as laid down by statute.
There is one vacancy, likely to be advertised soon, with the retirement of Lord Saville of Newdigate. There will be a second, next May, unless the rules are changed to allow the justices to stay beyond 70 to 75, because Lord Collins of Mapesbury will have to retire after only 18 months. Phillips is pressing for change but knows there are competing legislative priorities.
As when Sumption applied, the post will be open to non-judges. Yet judicial opposition remains. “There is quite a body of opinion that candidates for the Supreme Court should be judges,” Phillips says. He believes that judicial experience is “a valuable commodity, so that if you have a candidate without that experience, one would look for other qualities”.
Lord Saville’s replacement need not be a commercial judge because there are other judges with that experience. “We are looking for a judge of outstanding ability, to be appointed on merit.” All things being equal, another woman in principle would be desirable.
There have been wider tensions, too: both Phillips and Lord Judge, the Lord Chief Justice, are concerned about a ruling of the European Court of Human Rights over the use of hearsay evidence, and have said that Strasbourg may not have fully appreciated the workings of the common law.
The ball is in Strasbourg’s court and it will revisit the issue. Clearly Phillips hopes that the court will have a change of heart or “people will be very unhappy. We have produced our judgment and will wait to see what they make of it. But Strasbourg has the last word, and we are under a duty, so far as we can, to comply.”
Casework, of course, is the court’s raison d’être. In the past year he cites the ruling on the Jewish Free School as one of the most interesting appeals, raising “the fundamental question of what it is to be Jewish”. Of wider impact and “great importance to the man in the street” was the ruling that unfair bank charges could not be scrutinised by the Office of Fair Trading.
As for the future, the chief concern is the impact of government cuts. Severe cuts, Phillips warns, would damage the administration of justice; the court was set up to run with the budget it now has and there is a limit, with two thirds of costs fixed, to what cuts can be made.
It must fight its corner as part of the wider spending battle. But as the flagship court, and regarded throughout the world, its case for sparing cuts is strong if it is to do the job for which it was set up so recently. That, Phillips says, is to be “a final court of appeal for the UK that is open to the public, not only by letting thousands through the front door but, I hope, is the epitome of the public administration of justice”.
This interview, conducted by Times Legal Editor, Frances Gibb was originally published on the Times Law pages 7 October 2010 and is reproduced with permission and thanks.
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