Introduction
This paper is a sequel to the earlier one published by Policy Exchange entitled “Should the UK Supreme Court be abolished?”[1] A number of commentators, as well as the contributors to this symposium, have discussed my proposal for an extended Final Court of Appeal which would replace the Supreme Court. I thank them all for throwing their caps into the ring, and contributing to a valuable discussion of issues which, as former Lord Chief Justice Lord Thomas of Cwmgiedd has said, “need debate.” I thank Professor Ekins, and Policy Exchange’s Judicial Power Project, for providing a forum for a frank exchange of views. I still think reform is needed, and if not this reform, what?
What’s in a name?
There is a lack of consensus on the impact of the change of name from Judicial Committee of the House of Lords to Supreme Court, and on the question whether a change of name of the Supreme Court now would lead to a change in its judicial approach. The change of name of our final court of appeal in 2009 coincided with its transformation from a parliamentary committee located in the Houses of Parliament to a court with its own premises nearby in the Middlesex Guildhall.
The press reported recently that Robert Buckland, QC, the Justice Secretary, will recommend that the Supreme Court will be renamed, as well planning to cut the number of judges on the court and to bring in specialists to hear specific cases.[2]One commentator says that the leaked proposal is a near mirror of my proposal for an enlarged final court of appeal.[3] I am not sure that it is, but the Ministry of Justice proposal may be loosely based on mine. Lord Sumption is reported as being critical of the proposals, and his criticisms are relevant to my proposal for a reformed and renamed final court of appeal.
Lord Sumption argues that the Supreme Court is the same institution as its predecessor with a different name, and changing the name is not going to change the law or the attitudes of judges. I made the same point in my earlier paper, though I also said that a change of name from Supreme Court to UK Final Court of Appeal (my preferred title) “might serve to counter any impression that the final court of appeal is intended to be an elite corps of judges, with an ethos separate and distinct from that of the rest of the judiciary.” Sir Patrick Elias’ account of judicial attitudes suggests that in practice there is no distinct Supreme Court ethos, and on the subject of the word “elite”, I do take his point that describing the Supreme Court as an elite court is a virtue and not a vice if it is an apt description of the exceptional qualities of its judges. He does not believe that the name of the Supreme Court is of significance.
John Larkin QC expresses the contrary view as regards the change of name to Supreme Court:
“Giving a title to a court that includes the adjective ‘supreme’ – and putting no higher domestic judicatory above it – might be thought to be, at the very least, a temptation to judicial overreach.”
Professor Ekins has supported changing the name of the Supreme Court, to “help temper the Court’s emerging sense of mission”.
Is the Supreme Court more activist than its predecessor?
In my earlier paper I deny that this is the case. Lord Sumption takes the same view, but John Larkin QC challenges this, and thinks that the change of status and venue when the Supreme Court was created gave it the confidence to challenge the policy choices of parliament and has led to a loss of “constitutional modesty”. Sir Patrick Elias thinks that the Supreme Court is a “different animal” from its predecessor, and a “far more activist court” than its predecessor, and puts this down to the impact of the Human Rights Act. He notes that ironically this was a result not of a power grab by the judges but Parliament obliging the courts to give effect to human rights in a way which “in practice albeit not in theory, comes very close to trumping legislation itself.” He says that “there is some force in Professor Ekins’ claim that the court has taken an activist role not only in human rights cases but in other constitutional areas also,” and that “the separation from Parliament may have had some significance since it immunises the judges from political discussions”. Professor Stevens rejects the relevance of the change of name and venue to the question of reform of the Supreme Court, which he supports, and rejects the claim that there has been an increase in inappropriate judicial activism. He supports structural reform on other grounds entirely.
The procedural problem of choosing the panels and the question of specialisation
I agree with Joshua Rozenberg QC that the trickiest procedural problem for implementing my proposal would be the mechanism for choosing the panels, and, as he points out, Professor Ekins acknowledged the need to address this in his comments in our earlier publication. In brief, Professor Ekins’ solution is to assume omnicompetence, and he opts for availability as the main principle. On the general point of expertise, he has on his side Lord Sumption, who in 2016 in a speech to a family law conference in London, said:[4]
“I have always taken the view that legal specialisations are essentially bogus. At the bar, I liked to trespass on other people’s cabbage patches. As a judge I do it most of the time.”
I am the first to admit that what works for Lord Sumption does not necessarily work for the world, but my own experience suggests there is a lot of truth in what he says. These sentiments are echoed by Professor Stevens, who says:
“It is very important that lawyers in general, and judges in particular, do not develop a stove-pipe mentality, believing that only public lawyers can understand administrative law, or only company lawyers directors’ duties. Having judges with a range of expertise drawn from different areas is helpful in avoiding the errors caused by group think.”
He qualifies this as follows (internal footnotes omitted):
“That said, a panel of twelve will not cover the full range of practice that will be litigated before the court. The court is therefore in some cases reliant upon counsel to ensure that its members understand the issue fully which is usually, but not always, the case.
“The area where this has caused most difficulty is the criminal law. The history of notorious decisions in the criminal law is a long one. The lack of criminal law expertise has been alleviated to an extent by co-opting the Lord Chief Justice on to the court. But we can do better. Wyatt’s proposals would allow the composition of the court to include more members with practical expertise in an area. Overtime, this should improve the quality of our law.”
Professor Stevens clearly thinks that the rest of us are making heavy weather of the general issue of selecting panels (a “trivial” problem), and says we would need “a basic rotation rule, modified by expertise and availability.”
As regards the specialisation issue, the difference between Professor Ekins and Lord Sumption on the one hand, and Professor Stevens on the other, is narrow, because Professor Stevens sees the specialisation problem as being mitigated by the desirability and feasibility of judges operating outside their comfort zones. Professor Stevens’ view seems to be a practical version of Lord Sumption’s view that all specialisations are essentially bogus. While Professor Stevens advocates that a basic rotation rule be modified by expertise, he is clearly not advocating over fastidious modification on this ground. I agree with him.
Could judges of equal rank credibly overrule each other when sitting as the final court of appeal, and might they be too timid to do so?
My proposal is for a final court of appeal comprising the combined strength of the courts of appeal of the three UK jurisdictions. Each judge would bear both the rank and title both of her/his appeal court in one of the three jurisdictions, and of the UK Final Court of Appeal.
Joshua Rozenberg, QC, has suggested that judges of a Final Court of Appeal holding the same rank as the courts below might be too timid to overrule their colleagues,[5] while Professor Stevens disagrees and says that this is not his experience of the senior judiciary.
Jonathan Fisher, QC has said that “the line of precedent would be weakened if decisions of the Final or Upper Court of Appeal were made by judges of the same standing as those sitting in the court below.”[6]
Joshua Rozenberg, QC, raises the related problem that in view of the rank or seniority or specialisation of one or more of the judges which might have been fielded at the first appellate stage, an appeal to judges only nominally of superior rank would lack credibility. I suggest above that specialisation should not be a problem, but the credibility point is relevant. Sir Patrick Elias raises it too, asking why would anyone necessarily think that the final appeal court would more reliably get the “right” decision than the first instance court?
It is not novel for judges to be entitled to sit at more than one level, and in doing so pass judgment on judges of the same rank, as, e.g., if a judge of the High Court sits in the Court of Appeal on appeal from a judgment of the High Court.
There is also a precedent in the UK for a court in which all members hold the same rank and sit both at first instance and on appeal. I am referring to the 35-strong High Court of Justiciary in Scotland.
The High Court of Justiciary is the supreme criminal court in Scotland (apart from on compatibility or devolution issues where there is a further appeal to the Supreme Court), and its judges sit both at first instance and on appeal. All judges apart from the Lord Justice General and the Lord Justice Clerk, who sit only on appeals, hold the same rank and title. A single judge and jury sit at first instance, and 2 or more judges sit on appeal, with an increased number sitting where a difficult point of law is involved. The Lord Justice General or Lord Justice Clerk preside. The analogy with my proposed Final Court of Appeal is not precise but it is close.
Presumably in the Scottish criminal court system, judges who are of equal rank have no difficulty in assuming the appellate mantle, and hearing appeals against the judgments of their colleagues. And presumably it is thought that the result on appeal is more correct than the result at first instance, with this being ensured that the number of judges deciding to reverse a decision is always greater than the number deciding the case at first instance. This could also be the case in the proposed Final Court of Appeal if Professor Ekins’s proposal were adopted that the court sit in panels of six so that it would require four judges in the final court to override even a unanimous judgment in one of the appellate courts below. I do note, though, that the arrangements I have described in Scotland are confined to criminal cases, and that it seems to be the case that there is always a presiding judge of senior rank at the appellate stage. I examine below whether the reform I have suggested could be adapted to ensure that this would also be the case in the propose UK Final Court of Appeal.
The question of the willingness of judges to overrule each other would be a matter to be resolved through consultation of the judiciary on the merits of the reform. If structural reform were preceded by appropriate consultation across the appellate courts of the three UK jurisdictions, and the results were sufficiently favourable to justify going ahead, the reform would be a set of arrangements which the judges in question had embraced with their eyes open.
Would judges in the new collegiate final court of appeal be at each other’s throats for overruling each other?
Sir Patrick Elias says:
“I also believe that the effect on the current Court of Appeal would be highly prejudicial. The court operates in a very friendly and collegiate way but I fear that the proposal would be likely to undermine this. If a first appeal court were to consist of judges some of whom had recently overturned others, that would not create a collegiate atmosphere, particularly if there were doubts about the wisdom of the decision.”
I have described above the workings of the Scottish High Court of Justiciary. I would be interested to hear (genuinely, not as a figure of speech) whether the collegiate atmosphere of the High Court of Justiciary is undermined by the fact that members of it presumably overturn each other’s judgments from time to time, in the way that Sir Patrick Elias considers would happen as regards my proposed combined penultimate and ultimate court of appeal for the UK.
It might be that different considerations apply in a court of exclusively criminal jurisdiction. For civil cases in Scotland there is certainly demarcation between the Outer and Inner Houses, with the latter having the role similar to that of the Court of Appeal. I would make again the point about consultation prior to implementing structural reform. If the appellate courts were against the reform, it would be unlikely to work, if they were for it, it would probably be a success.
Making fuller use of judicial talent from across the three UK jurisdictions
Lord Sumption criticises the Ministry of Justice proposal on the ground that it would empower Scottish nationalism, since the Supreme Court is the only court with jurisdiction across the whole of the UK. This may have relevance to the Ministry of Justice’s proposal, but not to mine. I certainly do not wish to comment on Scottish politics. But I can say with confidence that my proposal would involve Scottish judges to an unprecedented extent in the work of the UK’s final court of appeal, and the same goes for Northern Ireland judges. I commend to the reader the section of Professor Stevens’ paper entitled “Under and Over Representation”, with which I agree. Sir Patrick Elias also accepts the advantage of this aspect of my proposal.
Would the prospect of a combined role in the hypothetical UK Final Court of Appeal be attractive to judges of the existing UK courts of appeal?
In his foreword to the earlier papers by myself and Professor Ekins, one of the questions posed by Lord Thomas of Cwmgiedd was would my proposal encourage the retention of the more experienced senior judges who retire early from the national appellate courts? I do not know for sure the answer to that question, but it was part of my hypothesis that it would, and I suggested:
“This new combined judicial office would provide a fitting final step in the career path of judges in the three UK jurisdictions, and hopefully contribute to the willingness of appellate judges to continue in post until retirement.”
What I had in mind was two things. One was that at present Court of Appeal judges who would have liked to have finished their career in the Supreme Court but found that avenue closed might retire early under present arrangements, but be attracted by the combined role to continue until retirement age. The other was simply that the combined role would be more interesting than the straightforward Court of Appeal role, and this might tempt judges to continue until retirement, whether they had had hopes of elevation or not.
Sir Patrick Elias accepts that “there would be some benefits in this scheme such as encouraging judges to stay to retirement age – I suspect some retire early in part at least because they appreciate there is no prospect of further advancement – and promoting co-operation across jurisdictions.” I find this significant, because Sir Patrick’s objections to my scheme are that it would downgrade the final court of appeal, and undermine the collegiate atmosphere of the Court of Appeal. Accepting that a benefit of the scheme would be to encourage retention of Court of Appeal judges until retirement age and implying they would see the combined role as a substitute for a seat on the Supreme Court suggests that some Court of Appeal judges might approve of the reform which I have suggested and would wish to participate in it if available.
The question of recruitment and retention of superior court judges is a serious problem, and a structural reform which might encourage appeal court judges to stay until retirement is worthy of consideration, other things being equal.
Would the proposed reform increase diversity at the final appellate stage?
Some press commentators have accepted that the proposed scheme would increase diversity. Professor Stevens thinks it is a merit of the scheme that it would increase diversity. Professor Malleson says:
“Whether the Supreme Court is renamed or reconstructed will make little difference to the diversity of the judges sitting in it.”
My own calculation of how much difference my proposal would make on the participation of women in the activities of the final court of appeal of the UK is as follows. At present, 2 of the 12 Supreme judges are women, representing 16.6% of the Court. Under my proposal there would be (using a snapshot of the current composition of the relevant courts) 71 judges in the UK Final Court of Appeal, from across the three jurisdictions, and 15 of those judges would be women, representing 21.3% of the hypothetical Final Court of Appeal. There are currently no BAME judges on the Supreme Court, and under my proposal there would be two.
We are where we are, and the reform I have proposed would increase diversity even if that increase is more modest than I would wish. Seven times as many female judges participating in final appeals than at present would represent at the very least a step in the right direction.
Would the proposed reform change the approach of judges at the final appellate stage?
I surmised that it might. Sir Patrick Elias is not convinced that it would:
“Nor do I see why the proposals would necessarily achieve the objective of making judges less activist. The premise of this argument is that unaccountable judges are more likely to be activist than accountable ones. I am not convinced that this is so. I suspect that a judge’s perception of his or her own role is determined principally by temperament and political and social outlook. Indeed, it may be argued that in so far as it can be said that there is a culture of activism in the Supreme Court, it would be exacerbated if the Justices – who would no doubt retain considerable influence in the final appeal tribunal – were to swim in the same pool as the current Court of Appeal judges.”
I am inclined to discount the latter point, about the influence of former justices in the larger judicial pool into which they would be assimilated. Partly because influence does not all flow in one direction, and partly because I accept his second point. His suspicion that a judge’s perception of her or her own role is determined mainly by temperament and political and social outlook seems plausible to me too, though that does not rule out other influences on that perception, such as the structural context within which a judge operates. If the reform I have proposed stands or falls on its propensity to inculcate an element of circumspection into the deliberations of judges at the final appellate stage, I accept that its effectiveness could not be guaranteed, nor measured, for that matter. I embarked on this exercise with the aim of suggesting arrangements at the final appellate stage which “might mitigate the negative tendencies identified by critics, while at the same time leaving intact the role of the judiciary as a whole in interpreting and applying the law, and thereby upholding the rule of law in the UK.” I accept that structural reform might or might not encourage a more circumspect approach to judicial innovation than would otherwise be the case.
Would the proposal “abolish or downgrade the most prestigious common law court in the world”?
The above words are those of Lord Sumption, as reported in the Times. He considered that the Ministry of Justice proposal referred to above would have precisely that effect, and that it could “only reduce our influence and the attraction of London as a dispute resolution centre”. That is an outcome which is clearly to be avoided.
Professor Stevens expresses the view that “There is no drop off in quality between the members of our ultimate appellate court and that of the Court of Appeal…”, and that is my impression too.
I addressed the issue of judicial quality as follows in my earlier paper:
“The overall quality of our superior judges is high, and in the various UK courts of appeal it is extremely high. Supreme Court Justices, with the occasional individual exception, do not stand head and shoulders above the judges serving in the various appeal courts in which they themselves (in virtually all cases) served prior to their elevation to the Supreme Court.”
My own instinct was and is that the enlarged UK Final Court of Appeal which I propose would be a world-class common law apex court, staffed by the judges from the three UK legal jurisdictions which in the great majority of cases comprise the final court of appeal in the UK in any event. The reputation of the common law, and that of the UK appellate judiciary, would be safe in their hands.
Yet Sir Patrick Elias contests this analysis. He considers that the proposal would undermine respect for the common law itself as well as the standing of the final court of appeal. He says:
“Where I part company with both Professor Ekins and Professor Wyatt is in the assumption that there would be no real loss of judicial ability if the Supreme Court were to lose its superior status. I believe that there would, and I say this without any disrespect to my colleagues in the Court of Appeal, all of whom are of a very high calibre. But in my experience, in every generation there are some judges who are, and are perceived by their judicial peers to be, particularly outstanding and they tend to rise to the surface. This is not always so; most Court of Appeal judges were, I think, surprised that the late Sir John Laws was not promoted to the Supreme Court. Nor do I pretend that all judges appointed to the Supreme Court fall into that very exceptional category. They are of course all extremely good but not all are obviously better than some of their colleagues who remain in the Court of Appeal; there is inevitably a fortuitous element to appointments. However, there are in my view sufficient judges of exceptional quality to give the Court a stamp of excellence which is essential for its authority and for gaining the respect in which it is held. It is that respect which is vital in a system where precedent has such powerful force.”
Sir Patrick’s reference to the judgment of judicial peers is important. The judges of the appellate courts of the three UK jurisdictions are best placed to measure their worth relative to that of the Supreme Court, and to assess whether the combined role I have advocated is feasible and desirable. A reform such as the one I have suggested could properly be undertaken only after consultation with all the appellate courts in the three UK jurisdictions. Such consultation with the judiciary should precede any major reform of the judiciary.
Sir Patrick’s contribution to this symposium might well provide a forecast of what such a consultation would reveal. On the other hand, the fact that Sir Patrick accepts that my proposal would encourage Court of Appeal judges to continue until retirement and implies they would see the combined role as a substitute for a place on the Supreme Court suggests that some might approve of the reform which I have proposed. I take Sir Patrick’s evidence very seriously, but am left with some doubt that he might have underrated the fitness of himself and his colleagues and successors to maintain the gold standard as regards the interpretation and development of the common law. I don’t want to take an offside shot at the goal, but accepting that the likes of himself participating in final appeals would debase the process does not come easily.
There is a case for structural reform which is not linked to the activism issue
Professor Stevens’ paper is worthy of remark because it advocates the reform under discussion without accepting, even for the sake of argument, that the Supreme Court might be guilty of excessive activism. That is a charge he rejects. Instead, he lists seven “supplemental reasons” why he supports the reform under discussion. These reasons highlight problems which are connected with the structure and function of the Supreme Court as a 12-strong apex court serving three jurisdictions and with jurisdiction over large elements of the law distinct to those three jurisdictions.
First on his list is diversity. This was not my starting point for advocating reform, but I argued that the reform would make a valuable contribution to diversity. Professor Malleson’s pessimistic outlook only underlines the need to do what can be done as soon as it can be done. The structural reform under discussion would at least allow the final court of appeal to take advantage of the level of diversity achieved in the courts of appeal of the three jurisdictions.
Another problem is the “Under and Over Representation” of Scotland and Northern Ireland. Professor Stevens argues the present Supreme Court structure is not best suited to dispose of appeals on legal issues distinct to Northern Ireland or Scotland. I agree and it is clear to me that not all UK legal needs can adequately be met within the small apex court structure, not to mention the broader constitutional need to give appropriate voice to the various legal cultures which comprise the UK.
I flag up without further comment the problems of specialist knowledge, equitable workload, and protection from political interference, which are other “supplemental reasons” discussed by Professor Stevens which I would wish to emphasis. I agree with him that they are significant issues, and that they would be addressed by the reform under consideration.
If not this reform, what?
I am convinced by Professor Stevens’ paper that the case for re-examining the structure of the Supreme Court does not stand or fall on the question of judicial activism. It is neither proven, nor provable, that restructuring would make judges at the final appeal stage more circumspect in their rulings in politically sensitive areas. But quite apart from the judicial activism issue, it does seem likely that restructuring of the Supreme Court could provide a solution to, or at any rate a mitigation of, other shortcomings associated with the status quo. It might be that the original proposal could be adapted to meet certain of the criticisms which have been made of it, but equally, it might be that the current UK appeal courts would find the original proposal more attractive than have some of its critics. They should certainly be asked.
The proposal could be adapted so that the Supreme Court would be replaced by a corps of particularly outstanding judges who might be designated as presiding judges. Initially, they would be the existing Supreme Court Justices. These presiding judges might sit only on final appeals, and preside over panels of 6, with the other 5 judges being drawn from the UK courts of appeal. The panels would decide by majority, and if the court were tied, the presiding judge might have a casting vote. This adapted model would ensure that a corps of particularly outstanding judges continued to be recognised as such, and that one of their number participated in all final appeals. It would also ensure that the final appeal panel was chaired by a judge of higher rank than the judges in the appeal court below. The structure borrows from that of the Scottish High Court of Justiciary. In the latter model there are two presiding judges who sit on appeals who are senior to the rest of the judges who sit both at first instance and on appeal.
But the adapted model would not need as many as 12 presiding judges to chair the 6 judge panels, or they would not have enough to do. And the adapted model might remove the sense of collegiate equality that the original model would be likely to bring to the final appellate stage, and which might be a factor in encouraging appeal court judges to stay till retirement age. Alternative structural solutions might be possible, but they would not necessarily be better than the original proposal, and might not satisfy critics in any event.
Derrick Wyatt, QC is Emeritus Professor of Law, University of Oxford, Emeritus Fellow of St. Edmund Hall, Oxford and member of the International Academic Council of the Fide Fundacion, an independent non-partisan Spanish think-tank
[1] Derrick Wyatt and Richard Ekins, Reforming the Supreme Court (Policy Exchange, 2020), pp.7-12
[2] See Jonathan Ames, the Times, 16 November 2020
[3] https://ukconstitutionallaw.org/2020/12/01/nicholas-reed-langen-reforming-the-supreme-court/
[4] https://www.legalfutures.co.uk/latest-news/sumption-legal-specialisations-essentially-bogus
[5] Joshua Rozenberg, QC https://rozenberg.substack.com/p/lets-abolish-the-uk-supreme-court
[6] Jonathan Fisher, QC https://e1a359c7-7583-4e55-8088-a1c763d8c9d1.usrfiles.com/ugd/e1a359_49ff2f2acc1f4b59921d6ceca1590f1f.pdf