Catherine Barnard: The unanimity in Cherry/Miller
Prior to the Supreme Court’s judgment, there was much speculation as to exactly how the Supreme Court would divide – 8:3, 7:4 or even 6:5 – and considerable speculation as to who would be on which side in the light of the questions posed and previous decisions made by the justices. All very US Supreme Court–like. It was therefore the first striking announcement that Lady Hale made on 24 September 2019 that the judgment was unanimous. Unanimity of the 11 – Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin, Lord Sales. So the question is why? Were all 11 so swayed by Lord Pannick QC’s oratory that they silently fell into line on ‘fundamental principles of our constitutional law’? I suspect the reasons were more prosaic – and more political.
First, a unanimous judgment sent out the strong message that the 11 most senior judges in the land were able to agree (presumably following careful chairing by Lady Hale) on this crucial and highly controversial constitutional case. Second, and relatedly, any divide would have created space for politicians to argue that senior judges in the minority did not agree with the majority and therefore sought to discredit the majority (politicians are already trying to use the High Court’s decision to do that instead).
Third, and perhaps most depressing, a single judgment provided protection for the individual judges. The ‘Enemies of the People’ headline in the Daily Mail following Miller I has had a profound effect on the legal profession. It was not just the headline and the personal attacks on the three judges (including Lord Justice Sales, as he then was, now sitting in Cherry/Miller) but it was the failure by anyone in government, in particular the Lord Chancellor, to defend the independence of the judiciary. It is harder to argue that all 11 justices in Cherry/Miller were remainiacs with a penchant for French wine.
And there is an irony here. The Court of Justice of the European Union always gives a single judgment in a case; there are no dissents. This is done to protect the judges from overbearing Member States. The individual judge takes protective cover from the blanket of unanimity. Common lawyers have long criticised this approach. Dissents, we argue, provide evidence of vigorous legal debates and sometimes pave the way for a future turn in the law. Dissents also avoid tortuous twists of language to accommodate competing factions among the judges. Anyway, what self-respecting judge would be intimidated by his or her Member State? While Cherry/Miller is a model of clarity, we are beginning to gain a better understanding of the concerns of some European judges. Unanimity is strength in this judgment but also, longer term, a sign of potential weakness in the way the legal system sits within the wider political system.
Catherine Barnard, Trinity College, Cambridge