Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like The Guardian and The Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?

This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.

Its current Head of Communications, Ben Wilson (formerly of the Archbishops’ Council of the Church of England – another body with distinct communications challenges) has a team of five to handle internal and external communications; three of these staff the Court’s reception and conduct guided tours for educational groups. Once upon a time the Appellate Committee of the House of Lords spoke only through speeches delivered in response to motions in the House. Looking back, Lord Hope, an initial sceptic of the value of the 2009 reform:

I remember looking at the video of our last seven judgments and I simply have no idea now what we were talking about. It was a theatrical performance, but in retrospect the lack of information for the observer was absolutely extraordinary.

Comparing the Appellate Committee’s announcement of the decision in R (Purdy) v DPP, the Committee’s last decision, with any post-2009 decision announcement, is telling.

Since October 2009 notable innovations in the way the Court communicates have included: a far more extensive website; tweeting is for the most part permitted from courtrooms; live broadcasts available on Sky; a Youtube Channel which archives decision announcements (though not yet a searchable archive like that offered by the Canadian Supreme Court of all oral argument, or audio feed as provided in the US by the Oyez Project); brief but detailed press summaries for each case (flagged up to recipients of the Court’s email list with pithy one to two line summaries of what the Court has decided); the Head of Communications monitoring media coverage of cases and building relationships with journalists covering the Court (leading in 2011 to two substantial TV documentaries); and, deceptively less eye-catching, the publication of far more corporate information about the top courts’ operations than previously (the Judicial Committee’s administration has been integrated with the Supreme Court).

While the Appellate Committee behaved like a Court it was still a part of a larger entity. It had no separately articulated public profile. One of the major differences in the post-2009 world is the emergence of the Supreme Court as a new, and distinct, voice on the constitutional landscape. So what has it, corporately (as opposed to the ongoing and increasing loquaciousness of the Justices individually), been saying?

First, that it is a success; that it is an important new constitutional player, with a role beyond serving the litigants before it. At the end of its first year it issued a press notice headed “A supremely successful first legal year”. Its annual reports have noted the importance of its decisions beyond the parties to any given case. Clive Coleman on the Today programme commented that it was “subtly unlike its predecessor . . .  more open, more transparent, and more powerful.”

The message of importance and significance sits slightly at odds with the Department for Constitutional Affairs’ line pre-2009 that the reform was really just a little tidying up on the separation of powers front. For the most part though the Court has managed to navigate that potential contradiction and moved beyond the Blair’s legacy narrative. The emphasis on importance does carry with it though the danger of attracting more notice than might be prudent. As its first President, Lord Phillips said to Frances Gibb in October, 2010, “we are very keen to have a higher profile, although not particularly keen to turn ourselves into political figures.”

The Court is also clearly a more self aware and self reflective institution. This arises to begin with from being independently established and no longer existing as a committee of the upper house. The sense of self awareness about its role also comes out in the way it flags up cases it thinks are likely to be of media interest (both in advance of hearings and in the annual reports). There is a curious dynamic developing here: while most cases come by leave, not all are considered newsworthy, either by the Court or those reporting on it. Being given leave identifies a case, in legal terms, as “important”; being worthy of special mention in an annual report, or advanced media briefing gives us an odd new category of top court case: the “super-Supreme Court case”. Super-Supreme, because it warrants not only top court review, but also mainstream media coverage. This is problematic (though understandable), leading potentially to a skewed popular portrayal of the Court’s function: put bluntly, some important cases seem dull. Linda Greenhouse, the doyen of US Supreme Court reporting, though has commented on the skill of being able to report well on legally important issues lurking in otherwise not so exciting cases.

Next, through the efforts especially of its lead members – the President, Deputy President, and Chief Executive – it has been staking out its autonomy and sphere of action, crafting an institutional message about the judicial role within the UK’s constitutional arrangements. Finally, on the point of the Court as a self-aware body, as a reading of the management board minutes reveals, it is quite clearly also listening to what is being said about it. Among other issues evident in the minutes as causing the Court concern is the independence debate in Scotland.

So, what effect has this new approach to communications had? In 2009 a Gardant poll of 1017 adults drawn from across Great Britain, and questioned in the month before the Court opened reported that 72% agreed with the statement, “very few people have heard of it [the Supreme Court] or understand what it will do.” Interviewees were not asked if they themselves had heard of the Court (presumably because while we will not own to it ourselves we are happy to attribute ignorance to others).

In December, 2012, the University of Essex’s National Policy Monitor reported that 36% of those responding (to its internet based poll of 1000 people), “were familiar with the Court”.  In comparison, 59% reported familiarity with the European Court of Human Rights. Of course the Gardant poll does not give us a baseline to measure the effect of the last three years of the Court’s communications efforts. One quite plausible hypothesis is that 36% recognition of the Supreme Court in 2012 might well be a significant improvement over an early 2009 measure of familiarity with the House of Lords judicial function.

A preliminary qualitative analysis of media coverage of the Court from 2009 to 2012 suggests that while journalists like Frances Gibb and Joshua Rozenberg, the trade press, and various specialist legal blogs, cover the Court well it is still not well served in the mainstream press. Many cases are covered well for the human interest side of the story, not so well for the legal issues involved in the case.

This may arise in part because decisions are often covered by the subject area reporter of a paper, rather than as in the US (for e.g., the New York Times Adam Liptak) reporters dedicated to the Court (so terrorism cases get the home affairs correspondent, money cases the economics correspondent). At times this has given rise to bizarre reporting results, Ian Cowie in the Daily Telegraph mused that perhaps the reason the Court found against the Office of Fair Trading in the bank charges case was because the judges, as part of the state, were looking out for the wider state interest (now that the state had significant stakes in a number of banks). It was a conjecture no fair minded and informed observer would entertain.

And as good as the Court’s communications team are they also face three serious sets of challenges. First, the threat of narrative hijack, where the Court finds itself covered as a character in someone else’s narrative. The Blair’s legacy line which ran through 2009 was the first example, one which the Court seems to have escaped.

Since then the most potent threat under this head has been from the SNP, and in particular its Justice Minister’s use of the Court as a cipher for the Union. Cases like Fraser v Her Majesty’s Advocate in 2011, have been used to paint the “London based” institution as foreign interferer. Exceptionally, the Court did implicitly respond to the debate in Scotland with a statement couched in impeccably neutral terms setting out its role in relation to Scottish criminal cases. Neutral though the Court’s statement was it nevertheless reported with an edge in the Scottish media.

The second challenge – kaleidoscopic transparency – arises as a result of the explosion of writing about the Court, and platforms for publication (including blogs like this one). There are a multitude of “Supreme Courts” being presented to the public. The “Supreme Court” a reader of the Daily Mail will know is very different from the one known by a Times reader, or a regular reader of the UKSC Blog or UK Human Rights Blog. The Court’s communications team has to find a strategy which gets a clear common message out across these platforms to a wide range of audiences.

Finally, the quality of coverage of the Court is based not just on the Court’s communications operation, but also the efforts of the media. To the extent the Court is covered well, both can take credit, and vice versa. Sir Ivor Judge identifies the importance of an independent media as on a par with the importance of an independent judiciary, calling them “twin independencies”. It can be a relationship of cooperation, but also tension. The Court, like any entity that has turned its mind to how it is seen publically wants two things: an accurate, neutral portrayal of itself and its role, and accurate coverage of cases (and coverage which does not mistake the Court with the decision – that way lies narrative hijack).

The media have some interest in helping with this, but they naturally also want more. Less than flattering to the Court in its early years (especially a Court which sets “transparency” as one of its loadstars) was especially Frances Gibb and Joshua Rozenberg’s coverage of the decision making process leading up to Lord Sumption’s appointment (also reviewed by the UK Supreme Court Blog). The peculiar appointment system for justices is not the Court’s fault of course, and there is pressure for reform.

David Pannick, in 1987 wrote, “it is a matter of some regret and concern that, in many respects, judges continue to shun and avoid publicity, both in and out of Court.” (David Pannick, Judges (1987, OUP), p.169). Between 1987 and 2009 the judiciary in general, as well as the top courts have opened up significantly. While there may be improvements to be made, the extent of the Court’s new communications operation is novel and impressive. The Supreme Court has begun to articulate a sense of itself beyond simply deciding cases: it speaks about itself, therefore it is.

Dr Richard Cornes

Senior Lecturer, School of Law, Essex University
Associate Member, Landmark Chambers
International Survey Editor, Public Law
Barrister and Solicitor of the High Court of New Zealand