Further thoughts on Supreme Court reform
In our recent paper, Reforming the Supreme Court, Professor Wyatt and I discussed the merits of his proposal to authorise changing panels of Court of Appeal judges to act as the apex appellate court. I noted that my initial view had been that the proposal was too bold, and that it might undermine an important feature of any legal system, which is a stable appellate hierarchy. However, there was clearly much to be said for the proposal, and by way of a series of tentative comments and questions I set out to elaborate and test its merits, concluding that it was an attractive and interesting proposal worthy of serious further consideration. The paper’s publication has generated public discussion, with legal commentators, including Joshua Rozenberg QC (Hon) and Jonathan Fisher QC, for the Society of Conservative Lawyers, addressing its merits in some detail. The government’s plans for reform, at least as reported, may also owe something to the paper’s reflections.
This new symposium aims to encourage further discussion about Supreme Court reform. My Oxford colleague, Professor Stevens, develops a powerful, unequivocal argument in favour of Professor Wyatt’s proposed institutional reform, while disagreeing with me, and to some extent with Wyatt, about whether reform is required because in some cases the Supreme Court is inclined to misuse its jurisdiction. In contrast, John Larkin QC, former Attorney General for Northern Ireland, argues that the change from Appellate Committee of the House of Lords to Supreme Court was significant in serving to weaken the discipline that otherwise bound our highest judges. Professor Malleson, an authority on the selection and composition of the judiciary, laments widespread indifference to the lack of judicial diversity and argues that Professor Wyatt’s proposal would do little to help address it. Sir Patrick Elias, former Lord Justice of Appeal, reflects on the change from Appellate Committee to Supreme Court, reasons that there is a marked difference between the two, but argues that Professor Wyatt’s proposal would be unlikely to help discipline the exercise of appellate jurisdiction and would risk much damage to it. Professor Wyatt then replies to all comers.
For my own part, and in company with Larkin and Elias, I say that over time the Supreme Court has become a more assertive court than the Appellate Committee from which it emerged. In a series of judgments, including but going beyond Miller (No 1) and Cherry/Miller (No 2), one can discern an emerging self-understanding that the Supreme Court is the guardian of the constitution, that it should compensate for imagined failings in the political constitution, and that its role is to defend human rights and the rule of law, as it sees it, even against Parliament itself. It is an open question how far this self-understanding is firmly embedded in judicial culture. I say elsewhere, and Elias’s contribution may confirm, that our judges are divided about how to understand their constitutional role, with some clearly taking a relatively more traditional view of proper judicial limits.
Removing appellate jurisdiction from a committee of the upper house of Parliament and instead creating a new court, with an elevated public profile and a name that in our culture brings to mind the United States Supreme Court, always risked judicial culture change, as some senior judges noted at the time. More importantly, the Human Rights Act 1998 had already set judicial culture change in motion, even if the scope of the change has turned in large part on how the Act has been received. Parliament is responsible for the 1998 and 2005 enactments, of course, even if it does not follow that it chose the wider consequences that those enactments have had for judicial culture. Parliament should now address those consequences, helping inform how our judges understand the proper constitutional limits of their role. Renaming the Supreme Court as the Upper Court of Appeal would be a simple, cost-free change, which would help encourage a change in judicial culture without any threat to judicial independence or the stability and integrity of the legal system.
But would it be better to go further, and to restructure the composition of the court itself? Again, Professor Wyatt’s proposal to this effect has its attractions. It would make it much less likely that a permanent set of judges would have a high public profile or would be free to remake the law in a series of judgments. The judges deciding final appeals would not be detached from the wider senior judiciary and thus might be more likely to avoid hubris. However, upholding the law requires consistency across a series of related cases and this might require relative stability in the reasoning of those who hear final appeals. That is, the stability of precedent may turn to some extent on stability of personnel. Changing panels are already a feature of our arrangements, but Professor Wyatt’s proposal would compound the extent of change and thus the instability. Relatedly, as Elias and others suggest, it is possible that some Court of Appeal judges would act differently in exercising ultimate, rather than penultimate, appellate authority. That is, authorising panels of Court of Appeal judges to hear final appeals may prove to be a weak means to restore discipline.
My initial concern about Professor Wyatt’s proposal was that it might undermine a stable appellate hierarchy. That said, I did not think that it would result in any loss of judicial quality. However, Patrick Elias makes a powerful case that for the highest court to discharge its role effectively its members must form a judicial elite, which means in part that truly outstanding judges – Lord Bingham, Lord Hoffmann – are likely to serve on the court. It would be a loss for the legal system if such judges were not routinely to be involved in deciding final appeals and it would weaken the force of precedent if final appellate jurisdiction was not exercised by them. On reflection, this seems to me a compelling point. Relatedly, if reform were to threaten the collegiality of the Court of Appeal that would be a strong reason not to proceed. The institutional separation between Supreme Court (or Upper Court of Appeal, if renamed) and the Courts of Appeal across the United Kingdom may help each court better to discharge its function, even if, as is plausible, Court of Appeal judges would have much to offer the final court in terms of perspective and expertise.
The government is reportedly contemplating legislative proposals that would rename the Supreme Court, reducing over time the permanent core of judges from twelve to nine, and authorising other appellate judges to participate in final appeals. Renaming and restructuring the final appellate court in this way might prove a means to maintain a stable appellate hierarchy and to make provision for useful inclusion of other judges from across the Courts of Appeal of the United Kingdom. However, the merits of the proposal will turn on whether it is likely that a permanent core of judges and other appellate judges can jointly exercise appellate jurisdiction, without the permanent judges exercising disproportionate authority and without unsettling relations within the Court of Appeal. These are difficult questions. But as Lord Thomas of Cwmgiedd said in the foreword to our recent paper, this is not a debate that is simply going to go away. In thinking further about how and by whom final appellate jurisdiction should be exercised – how best to make institutional provision for the rule of law – the exchange of views in this symposium, as in our paper, may prove helpful.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford