<em>Final Judgment</em> revisited

Final Judgment revisited

Alan Paterson [1]

Cite as Paterson, A., "Final Judgment revisited", European Journal of Current Legal Issues (2015) 21(1).


Not many authors have the good fortune to have their work examined by their peers in a special issue of a journal to which they themselves are permitted to contribute. I have been doubly fortunate in the calibre of the commentators and the strength of their contributions. By the time I had completed Final Judgment it was already clear that decision-making in the Supreme Court had departed significantly from the practice in the House of Lords. Teamwork had arrived - evidenced by more meetings before and especially, after, the hearings, and many more exchanges between the Justices. These changes brought unintended consequences: a loss of transparency in the Court, an exacerbation of power differentials between the Justices and ambiguities over the utility of the power to dissent. In this short piece I explore these developments and what has happened in the two years since the manuscript was completed.

1. Introduction

When I finished the manuscript of Final Judgment in the summer of 2013 it was already clear that decision-making in the Supreme Court had departed significantly from what it was in the final years of Lord Bingham's House of Lords. [2] First and foremost was the commitment to Teamwork. This was evidenced by a series of changes - meetings before the hearings; tighter discipline on counsel's arguments; a greater willingness to engage with arguments not put forward by counsel; a much greater commitment to single judgments; a collective disinclination to write concurring judgments; much more engagement by email with the judgment writer(s) and more second and third conferences after the hearings. It was also clear that there were unintended consequences from these developments: a loss of transparency in the Court, an exacerbation of power differentials between the Justices and ambiguities over the utility of the power to dissent.

2. The loss of transparency

This consequence is highly ironic since the court rightly prides itself on much increased transparency (as compared with the House of Lords) through its building, its hearings (streamed live on its own website and now, commendably, [3] available on archive), its judgments on YouTube and its press releases. The last are drafted by judicial assistants - more of a presence and more influential than when they started out under Lord Bingham - though at least one Justice, and exceptionally, in the Nicklinson assisted-dying case, all nine who sat, will revise it. [4]

However, in one crucial area the court is less transparent than its predecessor. We know less than we did as to what the members of the court think in each case. Under Bingham only 20 per cent of cases resulted in a single judgment. In the other cases, several judges indicated their view on the appeal, enabling interested parties to distinguish the moral concerns of Lord Browne-Wilkinson or Lord Steyn from the pragmatism of Lord Hoffmann.

By 2013 single judgments were running at 55 per cent of cases (see Figure 1 below).

Figure 1: Single judgments in the House of Lords and the Supreme Court as a percentage of total cases sat in during 1981-2013

Partly the dramatic rise in single judgments was down to the ever-rising workload of the court and partly it was due to a desire to offer greater guidance to hard-pressed judges in the lower courts. When the Supreme Court opened its doors in 2009, some of the Justices openly favoured a substantial rise in the number of single judgments - others, notably the two Scots and Lord Brown, did not. However, Lord Justice Carnwath in a celebrated cri de coeur in Doherty [5] called on the final court to use single judgments for the sake of the lower courts, the profession, and the paying clients and it soon became clear that Lord Clarke MR and many of his colleagues on the Court of Appeal, agreed with him. Gradually as more and more of them (including Lord Carnwath) were promoted to the Supreme Court, those favouring single judgments gained the ascendancy.

The third reason for the rise of the single judgment was new Court's deliberate commitment to greater teamwork. It is not that the Law Lords under Bingham did not get on - they did - they just did not see themselves as members of a team. The Justices, their first two Presidents included, were of a different outlook. They began to meet more often, at least once a term to discuss the running of the Court, and also before and after hearings - in the hope of reducing disagreements. Technology in the guise of email and word-processed draft judgments also facilitated team-working through permitting far greater circulation of judgments and multiple revisions than in the House, where not all the Law Lords were computer literate.

Nonetheless, the increased level of dialogue which accompanied these events was largely hidden from the public. The Justices were aware of the enhanced interaction between them and of the extent to which the product of their discussions or the circulated comments were absorbed into the single judgment of the court which appeared under the name of a single Justice, but the outside world largely was not. The overt clashes of style and judicial outlook which had marked the Law Lords under Bingham were becoming less apparent as multiple judgments and concurrences became the exception rather than the rule. Lord Rodger viewed these developments with concern. His fear [6] was that if these trends continued the judicial individualism of a Lord Denning or a Lord Wilberforce would one day become a thing of the past. Perhaps in response to this, in the last two years we have seen some of the Justices crafting opening paragraphs to their judgments which reflect their individual take on the case. [7]

3. Imbalances of power

Although the Justices are publicly portrayed as equals - some are more equal than others. We know from Lord Wilberforce that some Law Lords were more successful than others in having their views prevail in the outcome adopted by the majority of the Court. Some, in short, were more willing to embrace - and some were more adept at embracing - the range of opportunities to influence their colleagues which presented themselves even in a Court of individuals. [8] Team-working on the Supreme Court has enhanced these opportunities. Thus, some Justices are more successful in getting appeals accepted for a hearing on the Court as we can see from Figure 2.

Figure 2. Percentage of Permissions to Appeal granted 2009-2014

Again, as I indicated in Final Judgment, [9] some Justices in "close call" cases [10] are significantly more likely to appear on the majority as opposed to the minority side, and this has not changed in the two years since its publication (see Table 1 below). This is not always an indication of greater influence or task-leadership (it may indicate social leadership) [11] although we know that Justices such as Lords Dyson and Reed (and, one suspects, Lord Sumption) have been particularly adept in winning some of their brethren round to their perspective. [12] However, perhaps the most problematic power imbalance was the discrepancies which Final Judgment threw up in relation to propensity to write the lead judgment in the court. In part, the relative likelihood that a Justice would write the lead judgment reflected their success in winning others to their position in "close call" cases.

Table 1 Close Calls in the UK Supreme Court during 2009-2015 (1st April). (Figures in red indicate the position in the House of Lords)

However, as we can see from Figure 3, between 2009 and 2013, some Justices - notably those who tended to preside in the cases - were more than twice as likely to write the lead judgment in the Court as some of their colleagues. This imbalance was considerably reinforced by the fact that in 55% of cases there was only a single judgment. This is one area where there has been a change since 2013.

Figure 3. Lead or single judgments in the UK Supreme Court as a percentage of cases sat in 2009-13.

Following the publication of Final Judgment deliberate attempts have been made to equalise the load in terms of lead and single judgment writing, (as is the case in the US Supreme Court), with some effect, as can be seen from Figure 4.

Figure 4. Lead or single judgments in the UK Supreme Court as a percentage of cases sat in 2009-15 (26th March)

4. Ambiguity over dissents.

Whether it was the Court's commitment to greater team-working, its growing caseload or Lord Neuberger's unexpected suggestion in 2012 [13] that there might be merit in fewer dissents, the dissent rate of the Court, (which had risen in 2011 to well above the prevailing norm of 24%, perhaps as result of the internal tensions at that time) began to fall thereafter, assisted by the arrival of a more clubbable President (see Figure 5). Indeed in one startling and possibly unprecedented period of eight months from late June 2013 to mid February 2014 there was a run of 47 straight cases in the Court without a dissent.

Figure 5. Dissent rate in HL and UKSC 1952-2014

When the decline in dissents was revealed, [14] it did not gel with some internal perceptions in the Court - which was aware of dissents in the pipeline but still to be published and of dissents in the Privy Council. Even when dissents resumed in 2014 it was clear, as Figure 6 indicates, that dissenting is primarily an activity that the Justices seem happiest to indulge in with one or more companions. Thus, some Justices have never dissented on their own and almost all of those who have, do so much less often than in company with others. Possibly they consider that there is little point in a solo dissent in terms of influencing the future direction of the law. Maybe, again, greater opportunities for participation in the judgment-crafting process is bringing with it a disinclination to break ranks unless the issue is really a big question of principle. There is no indication, however, that dissenting is perceived by the Justices as an uncollegial act. At any rate, whether as a reaction to the eight month de facto moratorium on dissents, or not, the Court's willingness to dissent began to increase in the latter part of 2014 and in early 2015, accelerating the dissent rate to an astonishing 50%. It is not that the 2011 tensions have re-emerged in the Court - it remains as collegial under Lord Neuberger as it has ever been, helped by the rare luxury on the Court of a sustained period when there is no turnover in the Justices. Nor has team-working declined. However, perhaps because the Justices are now more familiar with each other's thinking, the additional meetings associated with team-working are no longer being as fruitful as once they were.

Figure 6. Dissents and Solo dissents as a % of cases sat in UKSC 2009 - 26 March 2015

Cases are taking longer, much longer, from hearing to judgment than was the case when Lord Neuberger first took over, especially in "close call" cases. Nicklinson, which took six months to publish (three times the norm) was always going to attract multiple judgments because of its topicality , but a late splintering of the majority over the issue of how best to engage in dialogue with Parliament, produced a decision without a majority ratio, despite efforts in several conferences to narrow the differences on the Court.R (on the application of SG) v. the Secretary of State for Work and Pensions (the benefits cap case) [15] took 318 days to be published, reflecting a plethora of conferences , a multiplicity of emails, some swithering by the swing voter and ultimately a decision for which there is no majority ratio. R (on the application of Evans) v. Attorney General [16] (the Prince of Wales's letters case) took four months to emerge (twice the norm) but here again the repeated conferences still could not produce a majority ratio. With such a level of disagreement perhaps inevitably the percentage of cases resulting in a single judgment has plummeted in the last six months. It has dropped by half to 25%, although this is perhaps a slightly misleading figure since there were eight joint lead judgments in 2014, [17] a device that has the advantages of a single judgment and fewer of its disadvantages.

5. Conclusion

Even in the 20 months since the manuscript for Final Judgment was completed, a lot has changed on the Court. The frequency of single judgments rose and then fell back, dissents fell and then rose sharply and efforts have been made to equalise the load in terms of the allocation of lead judgments. Curiously, as Lord Neuberger's Court has had longer to work together it has grown less settled. Team-working has not declined but it is not proving as spectacularly successful in producing single judgments with a clear ratio as was the case when Lord Neuberger arrived. Lord Neuberger favours multiple conferences if they lead to clearer and more coherent judgments, but is also aware that sometimes repeated meetings only serve to entrench opinions. In the past year "close call" cases have risen significantly, they are taking substantially longer to conclude and do not always yield a majority ratio. However, if dissents are rising, so too, are the numbers of joint judgments. This is a further sign of collegial working because they have the benefit of not so obviously threatening the individualism of the Justices (since they tend to reflect an internal division of labour rather than a jointly crafted judgment) [18] whilst enabling workloads to be shared without some of the drawbacks of multiple judgments.

The issue of panel size continues to trouble the Court. Lord Phillips favoured larger panels to decide important or particularly difficult cases. Lord Neuberger was initially less convinced of the effectiveness or utility of the frequent use of larger panels, but is now showing signs that on this his mind may be changing. One situation where he will re-convene with a larger panel is when a smaller panel in a tricky case is fiercely divided - here the question as in Prest and Waya is to ensure that the enlarged panel is as balanced in specialist interest and outlook as can be achieved. Re-convened panels can also occur when the Justices wish to decide an appeal on a point that has occurred to them after the hearing and which was not argued by counsel. Even then it is far more common for them to merely ask for additional submissions in writing (see Darbyshire in this issue). In practice it does not seem to matter whether the counsel accede to these requests or not, [19] the Justices have almost always stuck to the argument which they have raised from their own researches. The frequency with which this has occurred in the last two years must be disconcerting to counsel and to those tholed to more traditional advocacy in the Court - in truth it is further evidence that decision-making in our final appellate court continues to evolve and reminds commentators that they are describing a moving target.

[1] Strathclyde University Law School

[2] Of course the actual final year of the House of Lords was presided over by Lord Phillips.

[3] The ability to view the oral hearings for up to a year and to instantly verify claims such as occurred in the Assange case, that the Court had decided the case on a point which counsel had not been invited to address - which it had - are matters for which the Court deserves great credit. It is also in marked contrast with the US Supreme Court which allows tapes of oral arguments to be released but has repeatedly refused to allow its proceedings to be televised.

[4] That said, it would be fair to say that the average press release summarising a decision of the Court is not readily comprehensible to the non-lawyer. The Justices' own words when delivering the oral judgment for YouTube are generally more user friendly - although they are still not watched by many. Thus the Nicklinson judgment on YouTube has been watched by less than 5,000 viewers since it was handed down in June 2014.

[5] [2006] EWCA Civ 1739 at para 63.

[6] Lord Rodger, 'Humour and the Law' 2009 SLT (News) 202.

[7] See e.g. Healthcare at Home Limited (Appellant) v The Common Services Agency (Respondent) (Scotland) [2014] UKSC 49 per Lord Reed at para 1.

[8] See Final Judgment (Hart Publishing, 2013) ch 4. Lord Bingham was one of those who did not take all the opportunities that he might have done to influence his colleagues.

[9] See Final Judgment (Hart Publishing, 2013) ch 4.

[10] Defined as 'cases in which two or more judges in the final court dissent from the majority outcome'. Definition derived from B. Dickson, 'Close Calls in the House of Lords' ch 13 of J Lee (ed), From House of Lords to Supreme Court (Hart Publishing,2011).

[11] On task and social leadership see Final Judgment (Hart Publishing, 2013) ch 4.

[12] See Final Judgment ch 5.

[13] Lord Neuberger, 'No judgment - No Justice' 1st Bailii lecture 20th November 2012

[14] A. Paterson, 'A Scarcity of Dissents?' http://ukscblog.com/scarcity-dissent/.

[15] [2105] UKSC 16

[16] [2015] UKSC 21

[17] More than twice the figure in the last few years.

[18] Joint judgments have long had a provenance in the Court of Appeal and are therefore not a novelty for the Justices promoted from that court.

[19] In several of the recent cases where this has occurred counsel declined to run the argument.