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In its first case, beginning tomorrow, the Supreme Court will sit as a bench of 7.  It has recently decided that the JFS case will he heard by a bench of 9.  This brings back into focus the interesting question of panel selection in the United Kingdom’s highest court and whether the Court should regularly sit with more than that traditional 5 judges.

Many Supreme Courts sit “en banc” – that is as a plenary court including all the available justices.  Thus the US Supreme Court sits as court of all 9 justices (pictured right), as does the Canadian Supreme Court.  The High Court of Australia sits as a Court of all 7 judges  and the Supreme Court of New Zealand  as a court of all 5 judges.

This is, of course, not a universal rule.  Thus the Supreme Court of Pakistan consists of 17 judges but sits in benches of 3 to 14).  The Supreme Court of India presently consists of 23 judges and  sits in benches of  2, 3 or 5.  The Supreme Court of Ireland consists of 8 judges and sits in benches of 3, 5 or 7.  The German Federal Constitutional Court (Bundesverfassungsgericht) has two “Senates” of 8 members each and the European Court of Human Rights has 47 judges organised into 5 sections, sitting in Chambers of 7, with cases being referred to a Grand Chamber of 17.

Whenever a Court consists of a selection of the available judges there is potential controversy as to whether a differently constituted bench would have produced a different result.   

The selection of panels for the House of Lords was something of a mystery.   The Lord Chancellor was entitled to select the panels – though in practice selection depended on availability, the need to have a Scot on Scottish appeals and expertise (see D Oliver, “The Lord Chancellor as the Head of the Judiciary”, in The Judicial House of Lords (1876-2009), L Blom-Cooper, B Dickson and G Drewry eds), p.102.  It appears that before the First World War there were a number of examples where the Lord Chancellor engaged in “packing” the panel in cases with strong political overtones (ibid, pp.187-188)

In 1970s the Permanent Secretary and the Clerk of the Judicial Office would make the decisions on panel selection and would then put them to the Lord Chancellor.  The Private Secretary to the Lord Chancellor’s Permanent Secretary would then send out invitation letters to the Law Lords.  From the early 1980s the selection of panels was delegated to the Senior Law Lord.  In recent times it is said that selection carried out by Head of Judicial Office and “rubber stamped” by two senior judges. 

The question of whether panel selection should continue in the former way in the new Supreme Court was discussed at the 2008 “Supreme Court Seminars” at Queen Mary College.  Professor Andrew Le Sueur has produced an interesting report on the discussions at these seminars – which were conducted under “Chatham House rules”, in other words the contributions to the seminar can be reported but not the identity of those who made them.

On this topic Professor Le Sueur reports

The practitioner said that, as he understood it, the current system is that the draft programme for cases is prepared by the Clerks to the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council some weeks before the beginning of term and then submitted to the Senior Law Lord and Deputy Senior Law Lord to finalise the programme for the following term. The heart of the system is that there is an exercise of discretion about which judges sit on which cases.

The “practitioner” went on to draw attention to the criticisms of “a lack of transparency and the effect on outcomes”.  S/he continued

If, on the other hand, the Supreme Court sat en banc (as a plenary court rather than in panels), that arrangement would achieve complete transparency and ensure that no questions could arise about how the composition of the panel affected the outcome. Such benefits would be at the cost of the Supreme Court: radically altering working methods (for example by restricting the length of oral hearings and requiring more judicial assistants); reducing the number of cases that can be heard; and making the exercise of identifying the ratio of a decision more difficult, as experience of looking at the decisions of the Supreme Court of Canada confirms. Such a development would be regrettable because of its adverse consequences for the volume of cases that could be heard in domestic and Privy Council appeals.

In the discussion that followed “a Law Lord” commented that even the Law Lords did not know exactly how panel selection was handled in practice.  A practitioner commented that “whatever the system is, it would be useful for people to know why a panel is chosen the way it is”.  

There is an interesting recent article by retired Lord Justice Sir Richard Buxton, “Sitting en banc in the New Supreme Court” ((2009)125 LQR 288)where he suggests “with appropriate deference”, that issues of panel selection “are well worthy of consideration by the Supreme Court as it embarks on its role as the supreme authority in the British legal system”. He favours randomn selection “since the present subjective process appears to have produced no more than the chimera of expertise little will be lost, and much gained in terms of objectivity and transparency”

 No explanations have yet been provided by the Supreme Court as to its panel selection policy which is, at present, not being conducted on a “randomn” basis.   However, as we said at the outset, it is interesting that there is an apparent trend towards larger benches.    In the “Bingham Court”, the first 7 judge bench was in 2002 (R (Anderson) v Home Secretary [2002] UKHL 46).  After than, on a number of occasions, 9 judge benches were used (for the first time since 1910) (see Judicial House of Lords, pp.260-261) – but remained unusual.  The fact that a 9 judge bench is being used in one of the earliest Supreme Court cases suggests a trend.

 

 

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