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On 6 February 2012, the UK Supreme Court joined Twitter. A year later, the Supreme Court’s official account had 30,000 followers — still a fraction of that of the average pop star — but, for practitioners and commentators, it has become an invaluable way to stay up to date with every announcement and breaking judgment. The Supreme Court now also has a YouTube account, complementing the live broadcasts of hearings, so that highlights can be viewed online at any time. The use of new forms of media and technology extends to the submissions themselves: during last year’s hearings, the Justices pointedly reminded advocates of the importance of referring to the electronic bundles of submissions and authorities, not just the bound volumes. And in November 2011, to the dismay of the more atavistic members of the English Bar, the Supreme Court allowed advocates (by consent) to dispense with wearing wigs and robes. It is, without doubt, a distinctly modern court.
Those of us who write about the Supreme Court have observed these changes with interest. When lawyers from Matrix Chambers and Olswang solicitors started the UK Supreme Court Blog in 2009, it was partly because we expected the Supreme Court to modernise its way of working. But using Twitter, YouTube and other forms of new media are merely part of the Supreme Court’s broader agenda to make the way it functions as transparent as possible. It has done so with confidence and determination. This is illustrated most powerfully by the way in which the Justices talk publicly about their work.
When asked about the most significant feature of the Supreme Court, several Justices have focused on its openness.1 Superficially, this refers to the ease with which the public can now access permission decisions, hearing dates and the judgments themselves. Visiting the renovated building in Parliament Square has been made as welcoming as possible. It is a very different experience from attending the cramped hearings of the Judicial Committee of the House of Lords.2
But the openness and transparency of a modern approach has a further dimension. It includes the Justices deconstructing, in general terms, the decision making process itself. This has enabled practitioners and commentators to understand more clearly how the Justices formulate their judgments and how they reach consensus. For example, Lord Reed in a recent speech at Oxford University,3 explained the meetings the Justices have before hearings and the way in which early discussions on the cases are almost like seminars. He also discussed the multiple drafts that judgments go through, and how areas of dissent and further discussion are highlighted. Similarly, the new President of the Supreme Court, Lord Neuberger, set out his views on the writing of judgments in a speech for BAILII,4 the publishers of free transcripts of court judgments.5 Lord Kerr, after dissenting in a number of recent cases included in this volume,6 spoke publicly about whether dissenting judgments perform an important role or are merely judicial indulgence.7
For practitioners and academics intrigued by how ferocious legal thinkers resolve difficult questions of law, such speeches are fascinating. More importantly, these speeches have become part of a broader discussion on how legal writing can be improved and simplified, and what can be discerned from looking at the judgments as a whole, not just individually. The commentary and reflections in this volume are part of that discussion: William Gummow’s The selection of the major premise considers the Supreme Court’s style of writing judgments that do
not start with a major premise and the dangers of such an approach. Chris Hanretty in The structure of Supreme Court judgments: eleven ways to leave one’s mark looks at `joiners’ and `isolationists’ within the Court and how that may affect outcomes. Professor Brice Dickson contemplates the nature of legal innovation and imagination within the Supreme Court’s judgments of the last legal year in Creativity in the Supreme Court 2011-12.
Significantly, the Justices’ willingness to speak publicly about their work has led to them discussing not simply the mechanics of how they draft their judgments, but also the wider issues that affect the administration of justice. Sometimes this touches on politics and policy. In recent months, the Justices have given speeches on a variety of such topics: the value of the Supreme Court to all of the UK (in response to political comment that criticised the Court for being too focused on England);8 the potential impact of changes to legal aid on the most vulnerable in society;9 the importance of a strong executive and judicial restraint;10 the dangers of policies that would limit judicial review;11 and the UK’s relationship with the European Court of Human Rights (ECtHR).12
British judges did not grow up in a legal environment that expected them to give their opinions on difficult issues outside court, but that is changing. These contributions have been valuable in allowing the executive and the legislature to see important issues from the judiciary’s perspective. At times their comments are forthright and even critical, but it is a tribute to the care and clarity with which the Justices have engaged in such debate that, thus far, they have done so without tarnishing their prized reputation for political independence.
Reflecting on the cases considered over the last legal year illustrates the importance of that independence. This volume discusses cases in which the Justices considered the extent to which ECtHR decisions must be followed by the Supreme Court;13 the deference that the Supreme Court had to give to decisions of the Scottish Parliament in altering principles relating to personal injury claims;14 how far the Article 8 rights of children may prevent the extradition of their parents;15 and a range of other cases involving fundamental tensions between the wishes of the executive and the rights of individuals or the interests of companies. The Supreme Court also had to adjudicate on legal issues that were deeply interwoven with subject matter in the public spotlight, such as the extradition of WikiLeaks founder, Julian Assange, to Sweden;16 or disclosure of information by private investigator Glenn Mulcaire, formerly employed by the News of the World, to victims of phonehacking.17
Perhaps most interestingly, the increased profile of the Supreme Court has coincided with growing concerns about the selection of the judiciary, which the Justices themselves have taken on. The current President of the Supreme Court has been explicit: “Why are 80/90% of our judges male? It seems that on statistical grounds we don’t have the best people.”18 Shona Wilson’s contribution to this volume, Judicial diversity: where do we go from here? covers this important debate.
Even if views differ on how to solve that problem, it seems clear that the Supreme Court realises that modernity is not simply about engaging with technology and participating in public debate. The same determination, creativity and confidence that has helped increase transparency and improve the working of the Court will be needed if we are to maintain judges of the highest quality, at all levels, but who also better reflect the diversity of modern Britain.
This article originally appeared as the foreword to the Cambridge Journal of International and Comparative Law, Vol. 2, No. 1 (2013). The UKSC Blog editors will be reviewing articles from the journal later in the year.
1 See, for example, Lady Hale’s speech at Sheffield University, 12 March 2012; or Lord Reed’s speech The Supreme Court: an inside view at Balliol College, Oxford University, 11 February 2013.
2 One of the most entertaining speeches on the difference between working in the Judicial Committee of the House of Lords and the changes caused by the move to the Supreme Court is Lord Hope’s Taking the case to London—maybe it’s not over after all at the Edinburgh Centre for Commercial Law, 12 March 2010.
3 See above n 1.
4 British and Irish Legal Information Institute.
5 No judgment, no justice, The First Annual BAILII Lecture, 20 November 2012.
6 Lord Kerr dissented in: Ambrose v Harris (Scotland) [2012] UKSC 43; McGowan v B (Scotland) [2011] UKSC 54; Jude v HM Advocate [2011] UKSC 55; Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58; R v Gnango [2011] UKSC 59; and Ministry of Defence v AB & Ors [2012] UKSC 9. He also differed from the majority in Jones v Kernott [2011] UKSC 53, reaching the same result, but by a different route.
7 Dissenting judgments—self indulgence or self sacrifice?, The Birkenhead Lecture, 8 October2012.
8 Lord Hope, SASO Annual Conference, Lord Rodger of Earlsferry Memorial Lecture, 19 November 2011.
9 Lady Hale, Sir Henry Hodge Memorial Lecture, Equal access to justice in the big society, 28 June 2011.
10 Lord Sumption, F A Mann Lecture, Judicial and political decision-making: the uncertain boundary, 8 November 2011.
11 Lord Neuberger and Lord Hope, in oral evidence to the House of Lords Constitution Committee, 13 February 2013.
12 Lady Hale, Argentoratum locutum: is Strasbourg or the Supreme Court supreme?, Human Rights Law Centre Annual Lecture, University of Nottingham, 1 December 2011.
13 R (Quila) v Secretary of State for the Home Department; R (Bibi) v Secretary of State for the Home Department [2011] UKSC 45.
14 AXA General Insurance Ltd v The Lord Advocate & Ors [2011] UKSC 46.
15 HH and PH v Deputy Prosecutor of the Italian Republic of Genoa [2012] UKSC 25.
16 Assange v Swedish Prosecution Authority [2012] UKSC 22.
17 Phillips v Mulcaire [2012] UKSC 28.
18 Lord Neuberger, evidence before the House of Lords Committee on Judicial Diversity and Appointments reported in The Guardian, 16 November 2011.