April 19, 2013 6:55 pm

British Institutions: The Supreme Court

The most striking fact about this place is its informality. Grandeur and remoteness have been swept away
Justices of the Supreme Court including the president, Lord Neuberger (front row, centre) and the only female justice, Lady Hale©Rick Pushinsky

Justices of the Supreme Court including the president, Lord Neuberger (front row, centre) and the only female justice, Lady Hale. The gold-trimmed robes are ceremonial, not everyday wear, in the court

Two sides of Parliament Square in Westminster are dominated by buildings that most visitors to London learn to recognise within hours of arrival: Parliament and Westminster Abbey. The north side, as political aficionados if not tourists will know, has the Treasury, appropriately forbidding.

But the west? Somewhat incongruously, in a jolly, almost orangey brick, half of it houses the Royal Institution of Chartered Surveyors. Next to that, behind a statue of Abraham Lincoln, is an ornate grey building described in Pevsner’s guide as “Art Nouveau Gothic”. It looks as though it might also house a parliament, though not of anywhere important.

This would be a fair guess, since it was built in 1913 as the HQ and Guildhall of the matchbox-sized county of Middlesex, cruelly abolished in 1965. After that, it served obscurely for four decades as a crown court. And now? Well, you could say the old Guildhall houses one of the four great pillars of the state, along with parliament, Buckingham Palace and 10 Downing Street. Yet hardly anyone knows about it.

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Matthew Engel

This is not deliberate. The Abbey loves visitors’ money. Parliament repels them, as a nuisance and a security risk. Everyone tries to avoid the Treasury. This building has an A-frame sign outside on the pavement, trying to entice people in. “Open Today … Free Admission … Café and Gift Shop … Exhibition.” It even wants the public to observe its workings. This is very unBritish. Welcome to the Supreme Court.

Until four years ago Britain’s highest court sat across the road, as the appellate committee of the House of Lords. In theory that sat in public too, but its quarters were so cramped and access so complicated it might have been easier to storm Fort Knox. The change came about in very peculiar circumstances, which even the Cabinet Secretary of the time, Lord Turnbull, called “a complete mess-up”.

Theorists had long argued that the old system was an absurdity and an affront to the separation of powers: the legal system was under the control of the Lord Chancellor, who was also both a member of the executive (as a cabinet member) and the legislature (as speaker of the House of Lords). In 2003 Tony Blair announced that he was going to solve this problem, split off the court, and abolish the office of Lord Chancellor.

He had omitted to mention this to the incumbent, Lord Irvine, who explained, through his fury, that abolishing a thousand-year-old office with thousands of statutory obligations was not simple. Since perhaps no prime minister has ever been less interested in constitutional theory than Blair, the best guess is that he wanted to get rid of Irvine, his former mentor, and thought this would be a cunning way of doing it. It was the year of the Iraq invasion; he may not have been thinking straight.

At the time it was assumed to be a power grab. “Blair’s reforms risk the rise of a British Hitler”, yelled the Daily Mail, adding only a little robustness to quotes from senior judges. Several commentators claimed the upshot would be US-style politicisation of judicial appointments. Indeed the very name Supreme Court implied it was all part of a creeping Americanisation process. (Couldn’t Britain at least have called it something more original?)

The Supreme Court, housed in the former Middlesex Guildhall©Rick Pushinsky

Open for business. The Supreme Court, housed in the former Middlesex Guildhall

The title of Lord Chancellor survived, though mainly as an honorific; Lord Irvine’s political career did not. And six years after the rumpus, the judges moved out of the Lords and into the Middlesex Guildhall. Outside the legal profession hardly anyone noticed.

. . .

Earlier this month the Supreme Court justices took their places in the largest of their three courtrooms to swear in two new judges and return to their full complement of 12 (although they only hear cases as five, seven or nine). In the US, the alleged model, this would be a major event. A change in the US Supreme Court is a big story even for the posher British papers. Number of reporters in this court: one.

The room is wood-panelled and pleasant but not overwhelming in the manner of the House of Lords: it’s more like a cut-down version of an Oxbridge dining hall. Four portraits look down with expressions that represent, I fancy, the four faces of the law: the Duke of Wellington (looking contemptuous); Lord Bingham, the former senior law lord who died in 2010 (rather benign); the 18th century “blind justice” Sir John Fielding (quizzical); and Sir Montagu Sharpe, once a famous Middlesex judge (looking Judge Jeffreys-ish, frankly). In the public seats were about 30 officials, relatives and guests.

The newcomers, Lords Hughes and Toulson, were sworn in, handed their Letters Patent and then all 12 trooped out to pose for their annual team picture, as if assembling for the cricket season. It was just like a team picture too: ranged in order of seniority, flanking and behind the president, Lord Neuberger. The new boy Lord Toulson whispered that perhaps he should be cross-legged on the floor.

Courtroom one. Up to nine justices hear each case©Rick Pushinsky

Courtroom one. Up to nine justices hear each case

This might have been tricky since they were all looking very self-conscious in their heavily brocaded, gold-trimmed, slightly silly robes. Only slightly silly because the robes, like most other visible symbols of this court, lack the patina of age that runs through most British ceremonial. Self-conscious, because the robes are not part of everyday life in the Supreme Court. The most striking fact about this place is its informality.

Don’t misunderstand: this is not a tieless, first-naming internet start-up; these are courts of law, and based on hierarchy and deference. But the grandeur and remoteness that were inevitable when the court was an adjunct to the Lords have been swept away. The cheery welcome is not an illusion. There is security of course, but it is not overwhelming (“there’s more than meets the eye,” I was assured). And once past that, visitors have freedom to wander: into the courts, quietly; to the strikingly designed café, at the bottom of a deep lightwell (ambience brilliant, tea and coffee so-so); to the museum, which has interactive make-your-own-judgment touchscreen displays about past cases; and to the gift shop – everyone is proud of the Supreme Court teddy bears.

It feels a happy place to work. I met Derek Allen, the chirpy Jamaican-Cockney usher, on a non-sitting day: he had just been taking pictures of a couple of Brazilian tourists. “When I see people coming in, I like to explain things to them,” he said. “I love this place.” Meanwhile, Lord Kerr, the Northern Irish judge, had come down from his office in his cardi to welcome a group of Ulster sixth-formers. “My name’s Brian Kerr,” he began. I am not sure he had quite mastered the right level for explaining the court to teenagers, but the good intentions were palpable.

A Supreme Court teddy bear©Rick Pushinsky

In the gift shop. A Supreme Court teddy bear

The actual court proceedings are all universally available on a video feed (with judgments on YouTube) and the TV news networks can at any time interrupt their normal chatter and switch to live court hearings. It is a fact – maybe sad, maybe not – that they have hardly ever done so.

One reason is that the first four years of the Supreme Court have been unusually short of high-profile cases. The House of Lords went out with a bang – its last judgment involved the MS sufferer Debbie Purdy and the legalities of assisted suicide. Since then only one case, the WikiLeaks founder Julian Assange’s appeal against extradition to Sweden, has attracted anything like that degree of interest.

The truth is that this court is most untheatrical. The judges sit in mufti, bareheaded. The barristers can wear wigs and gowns provided all of them want to do so; they rarely do. But it is not the lack of costume that kills the drama, it’s the script and the delivery. Cases that reach the Supreme Court turn on points of law, not fact. These judges do not want to be treated like a jury, and so the arguments tend to be more like a colloquy than a debate. I sat in on a case involving an Iranian bank alleged to have connections with terrorism, and the submissions were so “on-the-one-hand-this ...” that it was quite hard to work out who was arguing for what (even before a barrister drew the justices’ attention to “Tab 17 in the four-volume supplementaries bundle, page 6,447”).

Lord Sumption, who gave up an extremely successful career at the bar to join the court, says it’s vital for barristers to maintain objectivity: “It’s essentially an exchange of ideas between advocates and the court. Though an advocate is a hired gun, he is only persuasive in so far as he has the confidence of his audience, therefore a recognition of the weaknesses in the case is absolutely indispensable.”

Usher Derek Allen in court livery©Rick Pushinsky

Making its mark. Usher Derek Allen in court livery

That much has always been true at this level of the game. But in subtle ways the inner workings of the court have changed since the move across the road. In the Lords, the court’s judgments were technically parliamentary speeches and, since two peers cannot speak at once, they could not work together on a single judgment. Now that rule has gone, there is greater emphasis on informal discussion. It is a more collegial court. And, so the theory goes, one that makes clearer rulings.

There have been other changes in style. Part of the old notion of justice was judicial ignorance (“And who are The Beatles?”) and until recently there was a distinction between those who liked to be surprised by what they were about to hear, and those who liked to swot up in advance. Now it is no longer clean-sheeters v swotters but between what Lord Neuberger calls Impressionists and Pre-Raphaelites: those, like him, who prefer just a vague idea of the case in advance, and those who want to be right on top of the detail.

“The disadvantage of the Pre-Raphaelite approach is that you do an awful lot of reading on points that turn out not to be important,” he explains. “The disadvantage of my approach is that there can be questions you’d wish you’d asked.”

Complete ignorance is now impossible because the Supreme Court itself chooses nearly all the cases it wishes to hear – “the court likes to dine à la carte,” the saying goes. And the criterion is whether they raise points of law of “general public importance”. A potentially wrong judgment or conviction of itself is not enough.

Much of the change comes simply from the liberating psychological effect of having its own roomy home to run its own show – a small department with its own chief executive, Jenny Rowe, subject to Treasury strictures but not ministerial control.

“In the Lords we were scuttling round like the mice in The Tailor of Gloucester rushing round the mouse-runs to get the jackets finished in time,” says Lady Hale, the court’s only female judge. “I’m very glad not to be there.” Against that, Lord Hope, the deputy president, is nostalgic: as a Scottish judge with a home in Edinburgh and just a small flat in London, he loved to pass the time after work by sitting in on debates. The post-2009 judges are not even peers: for them “Lord” is a courtesy title.

Lord Phillips, the Supreme Court’s president from its inception until his retirement last year, also has fond memories. “It had a lot of attractions. In parliament you rubbed shoulders with a lot of interesting people, you could listen to debates, and had a wider role. But it was not user-friendly as far as the public was concerned, and the theoretical fault was overwhelming.”

. . .

Lord Neuberger was an early sceptic, and was not on the original court. He was fearful that the £50m cost of the new operation would mean the slashing of the legal aid budget (which has happened, but not for that reason). And that the court would inevitably become more party-political and thus – shudder – more American. This has not happened.

The notion of a political judiciary is not wholly alien to the British tradition: Lord Halsbury, the seemingly eternal Conservative Lord Chancellor in the late-19th and early-20th centuries, picked judges who would come up with the answers he wanted. But the post-1945 Labour government could not replace crusty old reactionaries with leftie lawyers: there were not enough of them. And though there was the odd vengeful act of blackballing in the days of the Lord Chancellor’s department, the Blair changes have had the reverse effect from the one feared at the time. There is now an appointments commission, and politicisation seems further away than ever.

The Supreme Court library©Rick Pushinsky

Seat of learning. The Supreme Court library

There is a striking unanimity among the current court that they really don’t know how their colleagues vote in elections, or even how they will respond to a case. “There are some on the court whose views you can guess at and be right more often than not,” mused Lord Sumption. “There’s an obvious schism between the natural parsons who tend to look at issues in moral terms and the pragmatic realists.

“Even so I constantly find that while I may be right in predicting how particular colleagues of mine will think about a legal problem, I am quite frequently wrong about the direction I expect that to take them.”

I was also struck by the general sense of humility and conscientiousness. “What if parliament passed an act too obnoxious to countenance (killing all redheads, whatever)?” I asked several judges. They all said roughly the same: try to find a less harsh interpretation of parliament’s intention. If that fails, either support the law or resign.

Nearly half a century after Britain’s last hanging, the judges do still have to make life-and-death decisions about capital punishment, which most – maybe all – of them instinctively oppose. These come in their capacity as Judicial Committee of the Privy Council, which still hears appeals from 31 Commonwealth countries, territories and slivers, some of which, notably Jamaica and Trinidad, are still attached to the gallows. Lord Hope had been studying a capital case just before I saw him.

“There are routes we can take to soften the situation in these cases, and we are inclined to take them if available,” he said. “But basically we are dealing with another state, through its constitution, and it’s a jurisdiction we mustn’t abuse.”

The truth, of course, is that there is politics in every situation, even if it is office rather than national politics. I heard some juicy gossip (from other legal sources), which may or may not be true, about the appointments process. One highly contentious fact is that whereas Scotland, with less than one-twelfth of the British population, rates two justices, the female half of the UK rates only one. Lord Neuberger has been publicly wringing his hands on the subject, but three vacancies still brought forth three men.

That sole representative, Lady Hale, explained that, while roughly equal numbers of men and women qualified for the bar, the attrition rate for female barristers was such that they provided only 12 per cent of the Queen’s Counsel who form the profession’s upper reaches, and the main source of judges. Narrow recruitment was part of the problem, she said. “I challenge the assumption that only top advocates are the ones qualified to be top judges. You could ask yourself about why, among the very excellent women there are in the higher judiciary, they haven’t managed to find another one yet. But I’d better shut up about that.”

I decided to light the blue touchpaper. “Does it actually matter?”

“OF COURSE IT MATTERS.”

Lady Hale paused to restore her normal Beatrix Potterish calm. “We are a democracy. Our laws should not be decided by and applied by a body that is unreflective of the community as a whole. And this body is. This is a constitutional question as far as I’m concerned.”

Curiously, the court has become what you might call feminised in the last few decades. Forty years ago, the Lords spent much of its time on tax cases; according to Lord Hope, the work was so tedious that some judges tried to avoid promotion. More recently than that, it had little to do with family law, which was perceived as trivial. Now the great issues of birth, love, marriage and death are at the heart of the court’s concerns.

Which great issues in particular? Er, um, well. One explanation for the absence of headline-grabbing cases over the past four years is that the issues surrounding the Human Rights Act and judicial review have calmed down. It was the final phase of the Lords, under Lord Bingham, that was historically important. Otherwise it may just be a cyclical quirk. No Chilean dictators have sought refuge in Britain or anything like that. So it goes.

Lord Neuberger has mixed feelings about this. “I think it’s important that we do have a high profile in the sense that people know we’re here and what we do,” he says. “But I’m not particularly anxious to see our decisions blazoned across the newspapers.” He approvingly quoted Francis Bacon on the judges: “Let them be lions but lions under the throne.”

But talking to barristers, academics and others in the small community that actually takes an interest in the Supreme Court, I was struck by the regard in which it was held: an acceptance that these were, barring the odd missing lioness, the best legal minds in the business and that those minds were now more open than in the old days, when some law lords could be very irritable and dismissive. “That openness helps the legitimacy of the court and that’s a very important factor,” said one normally iconoclastic QC. “Even if you lose the case, at least they will have paid attention.”

Perhaps the court’s Privy Council branch could expand its export trade. It’s got a statue of Lincoln already. What about a takeover of the floundering and divided US Supreme Court?

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To read more by Matthew Engel on British institutions go to www.ft.com/engel

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