What really goes on in the Supreme Court

15 December 2013 by David Hart KC

On 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.

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