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Professor Wyatt’s proposal: a response

Jan 24, 2021


The debate about the role of judiciary in our democracy, and in particular of the Supreme Court, will never be resolved to everyone’s satisfaction. At root, there is fundamental disagreement about the legitimate function of the judges under the British constitution. At the risk of over-simplistic characterisation, the traditional view is that the court is the handmaiden of Parliament and whilst it can, with appropriate caution, develop the common law, it should genuinely seek to construe legislation, however unpalatable, so as to give effect to the will of Parliament and never to frustrate it. The contrary view perceives the role of the courts, at least in their relationship with the Executive and Parliament, as guardians of the basic principles of the constitution and as the protector of a growing army of fundamental rights. If, as will sometimes be the case, this involves an artificial or distorted interpretation of legislation – and some judges would say even if, in extremis, it involves openly refusing to give effect to legislation – so be it. Both claim to be enforcing the rule of law, and both claim to be upholding essential principles in a democratic constitution. The traditionalists focus on the importance of upholding the will of the people as the very essence of democracy; the latter on the importance of controlling the potential abusive effects of power exercised in the name of the people. I suspect that a third group, whilst agreeing that unelected judges should not in principle interfere with elected government, take the pragmatic line that it provides an important safeguard against the excesses of an executive which, given the nature of our party system and the first past the post principle of electing MPs, is not truly accountable to Parliament in the way in which traditional constitutional theory assumes.

Professor Ekins sits firmly in the first camp and is highly critical of what he perceives to be the growing tendency of the judiciary to apply judicial policy under the guise of legal rules.  Professor Wyatt hedges his bets, whilst appearing to accept that there is something in Professor Ekins’ criticisms.  Professor Wyatt recognises “the tendency of a final court of appeal, perhaps any final court of appeal, from time to time to put policy before principle in the adjudication process, and to endorse outcomes which conventional legal reasoning would struggle to sustain.”  Unlike Professor Ekins, who believes that there has been a noticeable shift in judicial attitudes which can possibly be attributed, in part at least, to the change of name and the removal of the Supreme Court from the precincts of Parliament, Professor Wyatt believes that there has been no marked change in judicial culture through the transition.

It is of course true, as Professor Ekins says, that the title Supreme Court is reminiscent of final courts elsewhere, such as the US Supreme Court, which do play a far more important constitutional role patrolling the boundary of law and politics than the House of Lords had done. I do not myself believe that the name is a matter of any real moment, although the separation from Parliament may have had some significance since it immunises the judges from political discussions. What transcends these in importance, in my view – and Professor Ekins agrees with this – is the impact of the Human Rights Act. In my opinion, and respectfully disagreeing with Professor Wyatt, it has made the Supreme Court a different animal from the old, pre-HRA House of Lords. Ironically, this was not a power grab by the judges. It was Parliament itself which conferred upon the courts the obligation to give effect to human rights in a manner which, in practice albeit not in theory, comes very close to trumping legislation itself. Unlike the traditional common law principles of judicial review which focus on ensuring a fair procedure and (at least in theory) that decisions are made in a manner consistent with the nature of the powers conferred on the decision maker, human rights principles engage with the very substance of the decision itself. The Wednesbury principle that the courts will not question the substance of a decision unless it is perverse is fast vanishing from sight, being transitioned into more interventionist principles.  A key concept in human rights law is proportionality and ultimately that the court to balance the benefits of the legislation or decision in question with the harm to any human right or rights in issue. Usually this involves a comparison and balancing of two completely different considerations, balancing apples against pears, which involves no particular judicial skills. It is true that judges are often very conscious of their unelected role and the institutional limitations on the court’s capacity to act confidently in areas where government knowledge and experience is much greater. But ultimately it is a matter for the courts themselves to determine how much humility they will show, how far they are willing to defer to the executive or legislature. Again, some judges are far more diffident about interfering than others. It has become apparent that different judges have strikingly different views about the appropriate limits of their power. The highly charged constitutional and human rights cases often result in a divided court (was a surprising exception, given the nature of the issue). For this reason, I do not think it is right to talk about a judicial culture, with the implication that the SC judges present a common front. But I think it is certainly a far more activist court than the House of Lords.

It is, perhaps, unsurprising that in an era when human rights are given such prominence, judges have been at pains to emphasise that the common law is no slouch and can protect them just as adequately as Parliament. So human rights can, if necessary, be reformulated as fundamental rights recognised by the common law. At the same time, the judges have for all practical purposes adopted a principle of proportionality in their armoury of judicial review. So even if Parliament were to repeal the Human Rights Act and opt not to recognise the jurisdiction of the Human Rights court at Strasbourg, the judges would have the basic materials to fashion similar rights without the need for any legislation.  Moreover, it is far from fanciful to think that they would seek to frustrate legislative attempts to curb their power either by artificial construction and possibly even by denying effect to such legislation. In my view 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. It is perhaps inevitable that once the courts were drawn into the political arena in order to defend human rights, they would be less inhibited in taking an activist line in other areas also.

Professor Wyatt suggests that if there is a problem with Supreme Court Justices being too activist, it is because the Justices are placed on too high a pedestal. They are no longer subject to the discipline of accountability. They mark the work of others but their own performance is never reviewed. The result is that there is a “willingness on occasion to decide cases on policy grounds, without disclosing an adequate or convincing legal basis.”  He proposes for consideration the idea that there should not be a cadre of judges who alone are responsible for making law at the highest level and that instead this should be a task undertaken by all the judges who sit in the appellate courts of the United Kingdom. Part of the time they would operate as the first tier appellate judges and part of the time as judges in what might be called the upper or final appeal tribunal. There would be no Supreme Court judges as such. Judges would box and cox between the two levels, sometimes reviewing colleagues and sometimes being reviewed by them. He suggests that this “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 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 also accept there may be something in the point that any group of judges, from wherever they are drawn, who are both unaccountable and who operate in a relatively small and intense bubble, will more readily tend towards an element of intellectual complacency. But I do not think that this is a serious problem and I certainly do not agree that their unaccountability has inculcated “an excessive sense of self- belief, and a sense of entitlement to do whatever they want with the law”. The judges are certainly intellectually self-confident, but in my experience they are only too aware they could be wrong and that there are no easy or “right” answers. Also, they live in an environment where their judgments are often strongly challenged internally, particularly where there are strong dissenting views. Nor would I dismiss the effect that critical academic commentary can have to keep the judges aware of their own limitations and bring them down to earth.

 But even if there were an element of complacency, I would still not support this proposal. First, I do not accept that the premise of Professor Wyatt’s proposal that the problem with the Supreme Court is insufficient reasoning. I agree that this might be said of the Anisminic decision, but it seems to me that the reasoning in recent controversial decisions such as Evans and Privacy International is quite transparent. The policy considerations are much more to the fore but they are cloaked in legal doctrine but not concealed by it. One may not like the reasoning, but I do not believe that it is opaque. In my experience it is very rarely the case that one cannot understand why a particular judge reached his or her conclusion. 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.

Quite apart from these considerations, I have a more serious objection. I believe the proposed change might undermine the respect for the common law itself. In a system which relies so heavily on a doctrine of precedent, and lays particular stress on the importance of decisions at the highest level of the judiciary, confidence in the quality and intellectual rigour of the judges is critical. Where I part company with both Professor Ekins and Professor Whyatt 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.  Describing it as an elite Court is not a vice; it is a virtue. At least so long as appointments are made on merit, I believe the Supreme Court will continue to be held in very high regard. It would be invidious to talk about current members of the court, but it would surely have been a terrible waste of judicial talent to have diluted the outstanding judicial qualities of such luminaries as Lords Bingham, Nicholls and Hoffmann.

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. Nor do I think it is being cynical to say that it may be difficult for a judge to warm to a colleague who has perhaps overturned his or her decision on a number of occasions.  Perhaps more importantly, why would anyone necessarily think that the final appeal court would more reliably get the “right” decision than the first instance court? The only difference would be that it typically has five judges rather than three and perhaps a little longer to hear the case. But this is no guarantee that its decisions are more reliable. (Indeed, I have wondered whether larger courts – in particular if they have over five judges – may sometimes dilute a sense of responsibility for a decision at least amongst those judges who have no particular expertise in the field and may feel that they are unlikely to have much effect on the outcome.)  There would also be tensions if some judges appeared to sit in the final appeal court more regularly than others; and yet if judges were to be selected by some random fashion to sit on the court, it would almost inevitably mean that some cases would be heard without any of the judges having particular expertise in the field – hardly a recipe for confidence in the result. Yet if judges were to be selected to ensure sufficient expertise, that would be a further source of potential dissension if some judges were as a consequence getting more than the normal allocation to the final court.

I also have some doubts whether the countries who now send their appeals to the Privy Council would continue to be willing to do so if it appeared that the appeal was from their appeal court judges to similarly placed appeal court judges in the UK.  I strongly suspect that an attraction of the current Privy Council is that it consists of exceptional judges drawn principally from the Supreme Court which countries who send their cases – and the judges in those jurisdictions – can recognise without rancour as having a quality which could not realistically be replicated in their own country.

Professor Wyatt has made a bold, radical and imaginative proposal for institutional change. For the reasons I have given, I hope it is not adopted!


Sir Patrick Elias was a Lord Justice of Appeal until his retirement in 2017

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