A Great Conspicuous Tribunal? The UK Supreme Court

A political court?

Gauging the court’s political presence, and whether or not it is greater or smaller than it ought to be, requires understanding the reasons why the court was set up. There are competing interpretations of the court’s origin story. On one view, the creation of the Supreme Court was the smallest possible response to a politically untenable situation where the nation’s highest appellate court was a committee of the legislature (the ‘Law Lords’), and where the Lord Chancellor was simultaneously a member of the executive, a member of the legislature, and a member of the judiciary. A competing view is that the court’s creation, far from being a ‘last-minute decision over a glass of whisky’, was in fact part of a coherent package of constitutional changes made by the Labour governments of 1997 to 2010. The new Supreme Court created a more natural forum for devolution disputes than the Judicial Committee of the Privy Council, and a more prominent forum for assessing rights claims made under domestic law following the 1998 Human Rights Act. The more you adopt this view of the court’s creation, the less likely you are to see the greater political role of the Supreme Court (compared to the ‘Law Lords’) as anomalous.

The political role of the court, as seen in the prorogation and Article 50 cases, is not one that its members have sought. Some of the Law Lords were ambivalent about the incorporation of the European Convention on Human Rights, and some judges (including a future President of the Court, David Neuberger) were in two minds about the creation of the Supreme Court itself. The court is bound, in certain circumstances, to follow the European Court of Human Rights in Strasbourg, and some of its members have expressed concerns about that jurisprudence. Yet although the court (and its members) have not sought a political role, they dislike attempts to limit the more political parts of their jurisdiction.

One of the most fascinating developments of the past five to ten years is the development of what Scott Stephenson has called ‘autochthonous constitutionalism’, or the emergence of human rights not guaranteed by the European Convention of Human Rights, but by the common law itself. Lord Reed, the current President of the Court, is sometimes painted as a judicial conservative, but he was one of the most ferocious critics when the government imposed disproportionate fees for access to employment tribunals, accusing it of failing to understood the importance of the rule of law and treating litigants as ‘users’ of ‘a public service like any other’. It is hard to say whether these references to common law or constitutional rights increase or decrease in line with the Conservative Party’s animosity towards the Human Rights Act, but they are certainly a bulwark against the erosion of human rights protection.

Understanding and talking about the court’s political role does not mean minimising the role the court plays in resolving ‘non-political’ disputes. Most of what happens on the court is determined by legal factors. Cases which attract lots of legal attention (because the earlier case in the High Court or Court of Appeal was written up in weekly law reports) are more likely to be heard (‘granted permission to appeal’) by the Court, and are more likely to be heard in larger panels when they are particularly important. The more judges you have convinced in the High Court or in the Court of Appeal, the more likely you are to win your case before the Supreme Court. The judges who write the opinion in your case are disproportionately likely to be judges who specialise in the relevant area of law. All of these legal factors are much more important than non-legal factors like the number of lawyers in your team or whether you are a governmental or private litigant. These things matter, but they matter much less than legal factors do.

An authoritative court

Although the court functions as a constitutional court – that is, makes authoritative rulings regarding the British constitution – it is unlike titular constitutional courts like the Italian or German Constitutional Courts in that it also resolves ‘ordinary’ legal disputes. These disputes may raise issues in criminal law, company law, tort or family law, to name just a few. The proportion of the court’s workload that is taken up by cases in these areas is considerable, even if it is lower than the equivalent proportion for the House of Lords. It is higher than the equivalent figure in other common law systems like Canada or Australia, in part because these federal countries have separate and partly autonomous state appeals courts.

Distinctions based on case categories like ‘family law’ or ‘public law’ are crude approximations. The court’s political role is not just the residue once we get rid of all the boring stuff that only lawyers care about. If (to bring out that hoary definition given to us by Easton) we view politics as the ‘authoritative allocation of values’, then almost everything that the court does is political, since it is authoritative (there is no higher court) and since it is about values. Every time that the Supreme Court decides between the tax authorities and the taxpayer, it authoritatively allocates money – and with it, values. The money and the values may never be mentioned explicitly in the judgment, but those values may be implicit in the language used by each judge, and the judgment remains a political act whether these values are spoken about or not.

Politics in court

There is also a sense in which even if the court is not interested in politics, politics is interested in the court. Litigants use the court system (and by extension the Supreme Court) to pursue political ends. The Miller cases on Article 50 and prorogation are the clearest example of this trend. The court also has an internal politics: lawyers, as a group, are keenly interested in having the last word, and although the judicial temperament guards against this, it would be odd if a group of high-performing individuals didn’t display some friendly competition over the terms of the court’s agenda. The court is also ‘politic’, in the sense of backing away from some decisions that might seem intemperate. Government appeals, for example, are more likely than appeals by private individuals to be heard by the Supreme Court, even when they have generally lost in the courts below.

However, the key sense in which the court can be political is more controversial. The court can be political in the sense that judges have different political views, and these views can be seen when they disagree. It is hardly controversial to note that judges have different political views: they are humans like the rest of us, and although they have very similar social and educational backgrounds, even people who have similar background characteristics can have strong political disagreements. What is controversial is the idea that judges show these political views in their disagreements. To demonstrate this, my book examines judges’ dissents over the first eight years of the court. I use a method, known as item response theory, which allows me to place judges on a scale. The more two judges agree, the closer they are on this scale, and vice versa. I then look at the cases which are most helpful in placing judges on this scale (in the jargon, cases which have a discrimination parameter which is clearly different from zero).

OPEN IN VIEWER

Judges on one end of the scale tend to be in the majority when the court decides to allow employees to pursue claims against employers; to allow individuals who have been involved in criminal proceedings to pursue claims against the police, prosecuting authorities, or detaining authorities, and to allow individuals to pursue claims against public authorities in order to receive public benefits. Judges on the other end of the scale tend to oppose these decisions. I describe judges of the first kind as being on the left-wing of the court, and judges of the second kind as being on the right-wing. These terms are relative: judges are left- or right-wing relative to one another, not to some external fixed point. Judges on the left-wing include Lord Kerr and Lady Hale; judges on the right-wing include Lord Walker and Lord Brown. The court’s longest serving President, Lord Neuberger, is in the middle; the court’s first President, Lord Phillips, somewhat closer to Lord Kerr and Lady Hale.

Although judges show their political views when they disagree, most cases do not result in disagreement, and most of what the court does is not characterised by judges’ individual political preferences. In an average year, the court might hear 65 cases. In an average year, 50 of these would be unanimous. This rate of unanimity is around 25 to 30 per cent higher than the same figure for the Supreme Court of the United States, and around 15 per cent higher than the figure for the High Court of Australia. Although the Supreme Court is (slightly) more dissentient than the Appellate Committee of the House of Lords, it is not a court riven by persistent or widespread disagreement.

Unity doesn’t mean uniformity. Most of what the court does is characterised by judges’ legal specialisms. Most judges practice first as barristers, and barristers develop specialisms. Some specialise in tax law, some in criminal law, some in shipping, others in estates. Often these specialisms follow barristers to the bench: in this way judges, too, develop specialisms in particular areas of law. These specialisms shape behaviour on the court. To give a fairly obvious example: there have always been two judges on the court who are ‘specialists’ in Scots law. If Supreme Court panels were random, it would be possible for a panel made up entirely of English, Welsh or Northern Irish judges to hear a Scots law case. If opinion authorship were random, it would be possible for opinions in purely Scots law cases to be written by English judges. But the former has never happened, and the latter happens hardly at all. Scots law is an easy example, but these patterns hold for other ‘specialisms’ like family law or criminal law. This is why the most important thing to know about a new Supreme Court Judge is not their politics, but rather their specialism, and how they contribute to the breadth of expertise on the court.

The 2019 Conservative manifesto promised a commission on Constitutional Democracy and Rights. It remains to be seen whether this commission will be another victim of COVID-19. Any serious analysis by a democracy and rights commission would have to recognise that courts necessarily play a political role. The degree to which courts are political varies between countries, and it is true to say that the Supreme Court now exercises a greater political role than the Law Lords ever did. This greater political role, however, came about because we asked judges to do new things, things which are sometimes quite different in nature from all the other disputes they have to resolve. A court with no political role is a court which does very little.