Artwork for FTWeekend comment - issue dated 28.01.17 Jonathan McHugh

Much of the rhetoric in favour of Britain leaving the EU has turned on giving the final say on questions of law to our own Supreme Court. The government’s decision to obtain the Supreme Court’s ruling on whether it could trigger Article 50, the EU treaty’s divorce clause, without statutory authority therefore left little room for a fresh attack on the judiciary if, as happened, the senior court again found against the government.

That decision has put the court, and its constitutional role, squarely in the public eye. Its importance is now widely appreciated.

Its inauguration in 2009 was long overdue. Although the Law Lords had been a distinct professional elite since the 1870s, they had an anomalous status as both legislators and judges which mocked the separation of powers.

The creation of the Supreme Court was anticipated by the abolition in 2003 of the Lord Chancellor’s judicial functions — another sensible measure, debased by the crudity of its execution and by the licence it has given prime ministers to appoint non-lawyers to an office which is now a spare-time job for the secretary of state for justice.

The failure of the present occupier of the post, Liz Truss, who as Lord Chancellor has a statutory duty to uphold the independence of the judiciary, to do anything to defend the three senior judges abused by the rightwing press for their initial ruling against the government is evidence enough of the fragility of judicial independence.

So far, however, the Supreme Court has flown above the storm. It was initially populated by simply moving the law lords from the Palace of Westminster, and thereafter by making appointees titular lords without making them peers. And no public fuss was made when the judicial appointments panel which sat to fill the first vacancy included the judge the appointee was to succeed. Yet there is still only one woman on the court, and no one from an ethnic minority. Why is this?

The independent Judicial Appointments Commission, set up in 2006 for England and Wales as part of the new dispensation (Scotland has its own commission), and which rightly makes all appointments solely on merit, has not, or at least not yet, redressed the imbalance. It has a mix of lay and professional members who sit in panels to make routine appointments. For appointments to the Supreme Court, which for civil cases covers the whole of the UK, a small panel chaired by the president of the court is used. It is required by law to consult a considerable number of high-ranking judges and office-holders. Although something like half the Supreme Court’s cases now involve issues of public law, only three of its permanent judges are specialists in the field.

Of the promotions made, more than one has caused surprise — but surprise is one of the by-products of judicial independence. Think of Earl Warren, a Republican politician appointed chief justice as a reward for giving Dwight Eisenhower a clear run at the presidency, who led probably the most liberal reforming court in US history. Or the former Ku Klux Klan member Hugo Black who, in the phrase of an anonymous contributor to Time magazine, began life by putting on a white robe and scaring black folks and ended by putting on a black robe and scaring white folks.

But none of this is any kind of reason for moving to an American system of political Supreme Court nominations. When British judges are described, as they repeatedly are, as unaccountable (which they most certainly are not), the subtext is that their critics would like politicians to be able to dismiss them for giving unpopular decisions. That way tyranny lies. Appointment to the UK Supreme Court, whatever its faults, would not be improved by making it subject to either a political or a popular vote. I once suggested to a member of the US Supreme Court that it enjoyed its status and respect not because of but in spite of its mode of selection. To my surprise, the judge agreed.

A particularly ill-judged omission from the legislation is the eligibility of senior academics for direct appointment to the Supreme Court. While familiarity with practice is needed in order to be a trial judge, it should not be necessary for a member of the Supreme Court to have practised. One has only to consider how much error the great academic criminal lawyer Sir John Smith would have prevented had he been among the law lords in the 1960s, 1970s and 1980s.

Another opportunity missed on transition was to change the format of judgments. As law lords, the first members of the court had been accustomed to delivering speeches, either reasoning out their individual conclusions or expressing laconic agreement with others. On occasion this caused uncertainty about what principle had actually been decided by the House. The establishment of the new court was an opportunity to change all this, and move to the format used by the European Court of Human Rights. This adopts a single text commanding the support of the whole or a majority of the court. From this, at least in principle, the law can be read off with reasonable confidence, while dissents, if cogent, live to fight another day.

This said, under Lord Neuberger’s presidency there has been a shift towards group judgments. The Article 50 case is as good an example as any: a single judgment of the eight who formed the majority, giving reasonable clarity about the grounds of the decision; and three dissenting judgments.

No court deciding major issues of public law is going to escape controversy, but the Supreme Court, with a creditable record so far of resisting executive claims to unbridled power, still enjoys respect.


The writer is a former appeal court judge

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