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Isenberg1Daniel Isenberg is a GDL student and the winner of the UKSC Blog Essay Competition 2013, run in partnership with the Supreme Court and The Guardian.  This is his winning entry. 

The law on dissent is clear: under Fifa’s Law 12, “dissent by word or action” is a cautionable offence. John Motson’s commentary may not quite be reported case law, but football requires no further clarification – the referee’s word is binding, and that which detracts from it serves neither the interests nor spirit of the game. Perhaps, though, a referee would have actually been an appropriate measure between their lordships in the majority, and Lady Hale’s dissent in R (McDonald) v Royal Borough of Kensington and Chelsea. This is not mere levity, and it is only by connecting the concepts of dissent and the “collegiality” of the UK supreme court (UKSC) that we can fully appreciate the nature of the need for dissenting voices in the UKSC.

But firstly, some context. There are two questions which lie behind this discussion and are worth bearing in mind: firstly, what is the general purpose of supreme court judgments; and secondly, and as a subsidiary, what is the rationale behind dissent? In a speech last year, the former Australian justice Dyson Heydon cited the scholar J Giles Vetta’s view that while German judgments were addressed to academic scholars, English judgments were directed at the losing party: “the English judicial process is in essence a continuous discussion which in all but superficial or detailed respects resembles any discussion among educated, informed and reasonable people.” Whether or not some of the language in McDonald resembles a “discussion among educated, informed and reasonable people” is quite another matter.

But, the judicial process is just that: a process. It is just as much about the procedure as the outcome that it leads to. However, this is where the debate begins: should the UKSC adopt, on the one hand, Mr Justice Walsh’s (of Wagon Mound No 2 fame) position that the role of judges is to reach an individual, unaided view of the case at hand; or a more “continental” collective approach, akin to the European court of justice, where (as David Hart QC observes) the “exercise must be to come up with the irreducible minimum which the court can say to give its answer”? 

Our courts have come a long way since privy council dissents were hidden in a special book and the modern culture of judicial practice is a significantly more collaborative process, including the circulation of draft opinions. This is something of a middle way between the extremes of judicial individualism and collectivism; and it should guide our attitude to dissenting voices.

At the end of Lord Phillips’ presidency of the supreme court, Joshua Rozenberg called upon Lord Neuberger, as successor, to “restore the spirit of collegiality that Phillips was unable to engender”. It is here where dissent comes in. Lord Kerr’s stance is simply that a judge should dissent when he considers the majority to be wrong, or his own view of the outcome to be right; a position he considers to be “prosaic and straightforward”. Yet while there is attractiveness to the clarity and simplicity of Kerr’s proposition, it arguably lacks the boost of a moral or rule of law-based driver. 

The notion of dissent certainly “feels right” in the context of a democratic society, based on freedom of expression, but this is not enough. By instead (or additionally) aligning dissent with the collegiality of the modern supreme court, we bring into sharper focus its exact role in the judicial process.

Dissent, when appropriately deployed, is both demonstrative and a key constituent of a healthy collegiate court. However, focusing exclusively on the amount of dissent obfuscates the issue. Chris Hanretty’s research has shown that while Hale’s dissents may be the most notorious of recent judgments, in terms of frequency, she has been eclipsed by both Lords Rodger and Kerr. Just as looking at merely quantity of dissents does not tell the whole story; neither does examining dissenting judgments alone. Not all dissenting voices are necessarily found in dissenting judgments – indeed, much critical commentary has focused not on dissentients, but where there are multiple judgments in the majority, often with differing rationes. The high court in Ministry of Justice, Lithuania v Bucnys had the unenviable task of unpicking the various views of their Lordships in the majority on the meaning of “judicial authority” for the purposes of a European arrest warrant from Assange v Swedish Prosecution Authority.

What collegiality requires is not a fixed quota of dissents per term, against which we can assess the current performance of the court. Rather, it explains that the purpose of dissent is not to be proved right in a later judgment; or by Luxembourg (as Lord Rodger was in OB v Aventis Pasteur SA, subsequently displayed in the UKSC; or, indeed, to be the Henry Fonda of the bench. It is, instead, to contribute to a process and to an outcome. 

That said, research has showed that unanimity occurs significantly more frequently in our most senior court, than those of the USA, Australia and Canada. Our collegiate approach is thus a double-edged sword: it both requires dissenting views for its health; but concurrently explains why consensus is more likely to be reached. That the celebrated dissents of yesteryear (notably that of Lord Atkin in Liversidge v Anderson) are famed for their rarity should not faze the dissentients of today.

The custom and practice of our highest court is evolving; and dissenting voices should keep apace with that change. Collegiality is the byword of the modern UKSC and, on Rozenberg’s inference, it may have come between Hale and the court’s presidency. It is our unique bridge between judicial individualism and the more collective approach of Luxembourg. This is not about numbers or statistics, about more voices or fewer; but instead that dissenting voices neither whisper nor shout, and are part of that conversation between “educated, informed and reasonable people” on Parliament Square.