What really goes on in the Supreme Court

15 December 2013 by

9781849463836On 9 December 2013, Professor Paterson launched his new book, Final Judgment (Hart Publishing, absolutely no relation), via the Second annual Bailii lecture, Decision-making in the UK’s top court – read lecture here, order book here (£21.25, Amazon) or direct from the publishers at £20 here (reference ‘PATERSON’ to get the further discount)

The lecture summarises a wise, perceptive, and at times funny work of scholarship, and this post is an unashamed plea that you read the book as well as the lecture.

The book is based upon over 100 interviews with Law Lords, Justices and counsel. Paterson is particularly well-placed, having carried out a review in the 1970s with 15 then current or former Law Lords and 46 counsel. He has also looked at the judicial notebooks of two of the outstanding leaders of the judicial House of Lords, namely Lord Reid in the 1960s and 1970s, and Lord Bingham in the 2000s. These notebooks contain not only records of counsel’s arguments, but also details of what the Law Lords or Justices thought at the end of the “first conference” held immediately after the oral hearing. And the revelation was that in many important cases the judges’ view shifted between that conference and the ultimate decision, often with a critical impact on the outcome. One of the particular interests of the book is to follow through the big cases of the last years, and see how the judges ended up where they did.

Paterson’s underlying theme is a simple one. Appellate decision-making in the UK’s top court is a social and collective process. The best way to understand it

is not through reductionist theories based on economics, power or attitudes, but by looking at dialogues in which the judges engage – with counsel, with other courts, with academics, with the other branches of the state and above all with themselves.

And what the Supreme Court has added in the 4 years of its existence is the beginning of another dialogue, that with the public, helped by its sophisticated communications office, case summaries, and televising of hearings.

At pp.222-233, there is an excellent summary of the dialogue between the Supreme Court and the Strasbourg Court, which is worthy of a number of posts in itself.

Returning to the process of decision-making, Paterson found many of the judges to be disarmingly frank. Have a look at a couple of instances in the lecture of judges changing their minds: Twinsectra/Barlow Clowes and key causation cases such as Fairchild to Barker), found under “Vote switching”  – Lord Rodger catching the flu seems to have disrupted the dynamics of decision-making in Barker.  Others will be interested in the process (p.184 of the book) whereby in the Prolife case (BBC censoring pictures of aborted foetuses) things started with a tentative 4-1 in favour of Prolife, but ended up 4-1 in favour of the BBC, or Chester v. Afshar (p.188, causation about a surgeon’s failure to warn) where there was a lot of changes of mind.

More substantively, a number of judges were not shy about saying that they decided what the answer should be in a case and then reasoned backwards from this point (p.197) but Lord Sumption explains the limits of this process.

If you start with the answer and work backwards it is very important to know when to recognise defeat. Some of us never recognise defeat, and some of us give up at the first problem, though not many. I think the ideal is to penetrate some way down the road and when you find that you can’t in any intellectually honest way get to where you thought you ought to be going, you change your mind.

The book is fascinating on the oral process before the Court. Questions for the advocates are not only designed to probe their argument but also aimed at enabling the questioning Justice to make his point with other members of the court. Barristers limbering up for an outing in the Supreme Court, or indeed in any appellate court, would do well to compare notes with p.41-62 about the dialogue process, dialogue being the operative phrase rather than the sequential monologues which occur more often in first instance courts. They might however be wary of following the example on p.34 where in, I think,  the 1920s or 1930s, Lord Buckmaster asked counsel

“how long this nonsense is going to continue”.

Response: “about ten days, if interruptions continue on their present scale, and a few days less if they diminish”.

The House did not take the hint, and subsequently counsel (DN Pritt QC – later to defend Ho Chi Minh and Jomo Kenyatta, but that is another story) was driven to slam a book down on the lectern and shout “YOUR LORDSHIPS ARE GOING TO HEAR THIS APPEAL.”

As Paterson observes,

They did. Pritt won.

Whilst today’s Supreme Court is far from being a respecter of sloppy advocates, its manners have improved somewhat since the heavy brigade of the 1980s, particularly Lords Bridge, Brandon and Templeman (the last known as Sid Vicious at the Bar). On one occasion, after leading counsel had been given a real pummelling by all three bruisers, his junior was asked whether he wished to add anything. His reply was short:

Not without a helmet.

I am happy to say that on my only outing before Lord Templeman we were on the right side of the argument.

The book gives one a strong sense of the personalities of the Law Lords and Justices, and how they operate between themselves when reaching decisions. Lord Sumption suggests that appellate judges can be divided into “parsons”, who look at issues in moral terms, “pragmatic realists” who have an eye to consequences, and “analysts” who focus relentlessly on legal principle. Paterson describes Lord Browne-Wilkinson as a “parson” in these terms, and Lord Hoffman as a “pragmatic realist.” p.180 recounts how over a 3 month period the realist won the parson round in the Argyll Supermarket case.

One important debate, well covered in the lecture and the book, goes to the pros and cons of the Court giving a single majority judgment, with a strong move in the current court in that direction. Paterson identifies the potential dangers of this; longer single judgments, the possibility of reinforcing existing tensions, the loss of individual expression in the more committee-style single judgment, and the domination of the judgment writing process by a few members of the Court.

I wonder whether these dangers are worth running to achieve the dwindling down of multiple concurring judgments, which then got analysed endlessly in the courts below, before some consensus formed as to what they meant. The worst example of this was in Kay (the human right/possession order case) involving six concurring speeches, which Lord Carnwath (then in the CA) had to apply. As he told Paterson

he had spent a weekend wrestling with a piece of self-assembly furniture – until he realised that IKEA had given him the wrong instructions leaflet. The problem with the House of Lords [in Kay] was that they had given him six separate sets of instructions for the same case.

To conclude, there is a huge amount of interest in this book for anyone interested in the judicial process. It is far from reverential, and the reader will come away with a much better idea of how judges at the top of the tree really make their decisions.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

2 comments


  1. Undoubtably a worthy sequel to ‘The Law Lords’ Patterson, A (1982) Reprinted 1982, ’83, ’84.

  2. George says:

    I wonder if the judges in the Supreme Court have one eye on a filtering process of preventing cases going to the European Court of Human Rights by leaning towards human rights considerations or whether they are a more considerative court that replaces the house of Lords with its long winded but thorough analysis of the background laws.
    Perhaps these two opposing considerations produce more robust judgments.
    http://www.familylawhelp.info

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: