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Santos and M v Secretary of State for Exiting The European Union, the “Brexit” case regarding the interpretation of Article 50 Treaty on European Union, is widely expected to reach the UK Supreme Court (UKSC) before the end of the calendar year. If this happens, it has been widely reported that the UKSC will sit all of its present eleven justices—making it the first the UK’s top court has sat en banc. In addition to fitting into the unfolding drama of Brexit, this unprecedented occurrence also fits into another narrative: the evolving panel size practices of the UKSC. Presently, we are undertaking a project that investigates these evolving practices, through both doctrinal analysis and engagement with UKSC Justices, UKSC officers/staff, and practitioners with UKSC experience. While we expect to publish our full findings and analysis in 2017, the curiosity generated by the Article 50 saga provides an apt moment to introduce some of our work, in the hope it may offer some clarity during this period of flux. Our main point is this: for anybody looking seriously at the topic of UKSC panel size in recent years, the reported decision that the court will sit en banc in the Brexit case does not come as too much of a shock. It is certainly unprecedented but it also fits in with recent trends in the practices of the Court.
Panel Size Practices in the Judicial House of Lords
When the Judicial Committee of the House of Lords was the UK’s apex court, the procedure by which panel size was determined was far from transparent. The maximum number of Law Lords was raised at various points:
Within this simple legal framework, it appears that the Lord Chancellor initially had ultimate responsibility for panel selection (generally dependent upon availability, expertise, and the requirement to have a Scottish Justice hear Scottish appeals etc.). By the 1970s, the procedure was that the Permanent Secretary and the Clerk of the Judicial Office would make decisions on panel selection and would then put them to the Lord Chancellor. The Private Secretary to the Lord Chancellor’s Permanent Secretary would then send out invitation letters to the Law Lords. From the early 1980s, the selection of panels was delegated to the Senior Law Lord. In more recent times, it is thought that the selection process was carried out by Head of Judicial Office and then “rubber stamped” by two senior judges. This potted history is all very rough. The reason for this is that the procedure was far from transparent. In fact, at a seminar held towards the end of the judicial House of Lords’ lifetime, a Law Lord candidly commented that some of the Law Lords themselves did not know how panel selection actually worked in practice.
Looking at the cases, it is evident that the ordinary practice was for the Law Lords to sit in panels of five, save for cases of great importance, where seven or nine Law Lords sat. Examples of cases involving seven Law Lords include:
Examples of cases where nine Law Lords sat include:
These examples are all cases from the last two decades or so. This is indicative of the fact that, despite some historical examples, increased panel sizes are a relatively recent phenomenon. This is probably best demonstrated by the fact that there was almost a hundred years between the first time a panel of nine was convened (R. v Ball  A.C. 47;  1 K.B. 461) and the second instance in 2003 (Attorney General’s Reference (No.2 of 2001)  UKHL 68;  2 A.C. 72).
Andrew Burrows has suggested that the case of Murphy v Brentwood DC  1 A.C. 398;  3 W.L.R. 414—concerning pure economic loss in negligence—could be seen “as the first turning point” in this trend toward larger panels sitting more often (see Andrew Burrows, “Numbers Sitting in the Supreme Court” (2013) 129 LQR 305). However, as Burrows also notes, after Lord Bingham became the Senior Law Lord in 2000, there were more cases in which larger panels were convened (albeit that this was still rare and accounted for no more than about 2–3% of cases heard). Interestingly, Burrows observes that the cases that the Bingham Court heard in larger panels defy easy categorisation, as there appears to be no coherent thread tying together the cases where larger panels sat. They were not, for example, all cases where the 1966 Practice Statement  3 All ER 77 was in play.
Panel Size Practices in the Supreme Court
From 1 October 2009, the jurisdiction of the Appellate Committee of the House of Lords was transferred to the new UKSC, by operation of the Constitutional Reform Act 2005. Sections 42 and 43 of that Act provide the rules on when the new Supreme Court is considered “constituted” in a given case. Section 42(1) provides the key statutory requirements concerning panel size:
“The Supreme Court is duly constituted in any proceedings only if all of the following conditions are met—
(a) the Court consists of an uneven number of judges;
(b) the Court consists of at least three judges;
(c) more than half of those judges are permanent judges.”
Beyond these fundamental requirements, the 2005 Act provides no further legal restrictions on the composition of UKSC panels. Consequently, a broad discretion is left to the UKSC to decide matters of panel size for itself. As the UKSC usually has twelve justices, a bench made up of any odd number between three and eleven justices is legally permissible (on the assumption that six permanent justices are available).
In 2010, shortly after its establishment, the UKSC published brief guidance on panel size on its official website. The guidance, entitled “Panel Numbers Criteria,” is said to offer general principles to “be used [by the UKSC] when considering whether more than five Justices should sit on a panel.” It has five broad criteria:
“If the Court is being asked to depart, or may decide to depart from a previous decision.
A case of high constitutional importance.
A case of great public importance.
A case where a conflict between decisions in the House of Lords, Judicial Committee of the Privy Council and/or the Supreme Court has to be reconciled.
A case raising an important point in relation to the European Convention on Human Rights.”
This guidance has no legal force and is no more than a statement of general court policy. As for the procedure concerning how panel size is now determined, Alan Paterson notes that the panels are “largely selected by the Registrar” and subsequently proposed to the President and Deputy President at a “horses for courses” meeting.
What, then, of the actual panel size practices in the UKSC? Right off the bat, the UKSC indicated, at least implicitly, that it would do things a little differently to its predecessor court. In the first case it heard— R (E) v Governing Body of JFS & Ors  UKSC 15;  2 A.C. 728—it sat as a bench of seven. Generally speaking, the UKSC has sat with larger panels—of seven or nine—much more frequently than the judicial House of Lords. This is represented in the below figures, which cover the first six legal years of the UKSC:
Panels of Seven
Panels of Nine
Portion of Total Appeals Heard
This trend towards larger panels was acknowledged as early as the Supreme Court’s Annual Report for 2011–2012, where it is stated that a “notable feature of the UKSC’s short history so far is the frequency with which panels [deciding permission to appeal] recommend the Court sits in larger constitutions.”
A final note must be added here about the recent case of Keyu v Secretary of State for the Home Department  UKSC 69;  3 W.L.R. 1665 (about which two of us have recently published an article, which can be found in Judicial Review). In that case, the UKSC was provided with the opportunity to address a seemingly perennial conundrum of modern administrative law: should proportionality review be available generally at common law? Lord Neuberger’s judgment offered the following conclusion on that question:
“It would not be appropriate for a five-Justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope. Accordingly, if a proportionality challenge to the refusal to hold an inquiry would succeed, then it would be necessary to have this appeal (or at any rate this aspect of this appeal) reargued before a panel of nine Justices.”
This answer—which uses panel size as an adjudicatory factor—is another novel aspect of the UKSC’s recent practices concerning panel size.
The Article 50 Case and the Panel of Eleven
There are multiple reasons why panel size in the UKSC is an important topic. The issue presents a matter of serious significance to litigants and their representatives. It also presents broader, normative questions about what the appropriate procedures for an apex judicial institution are in this respect. More simply, the matter warrants investigation because, as Buxton LJ (writing extrajudicially) once put it, “panel selection seems… to be an inescapable and central feature of the business of the Supreme Court” (see Richard Buxton, “Sitting en banc in the new Supreme Court” (2009) 125 LQR 288). And the Keyu case has only served to provoke further attention to this aspect of UKSC practice. What does all of this context mean vis-à-vis the Article 50 case?
Well, the headline would be this: the reported decision to sit en banc in the Article 50 case, for those who look at UKSC panel size practices in recent years, would come as no great surprise. All of the Justices sitting together is certainly unprecedented but it also fits in with recent trends in respect of panel size. Looking to the UKSC’s published policy, it is clear that the Santos case is one of “high constitutional importance” and “of great public importance” (note that the criterion is not the narrow “legal” idea of “public interest,” but the broader idea of a case that is important to the public). While it is, therefore, fair to question whether sitting en banc is wise in this particular case, it is difficult to suggest that this came “out of the blue” as a matter of UKSC practice.
Furthermore, the Article 50 case—if it does actually reach the UKSC—may quickly become a historical anomaly in respect of panel size. As noted above, the UKSC currently has only eleven Justices. It usually has twelve but a seat is currently vacant due to the recent retirement of Lord Toulson. Under Section 42(1)(a) of the Constitutional Reform Act 2005, an even number of judges cannot sit in the UKSC. There is effectively a statutory hurdle preventing the UKSC sitting en banc. So the possibility of the UKSC sitting en banc is in the Santos case is, at least in part, an incident of fate. If the court sought to sit all of the justices in normal circumstances, it would have to draft in an ad hoc justice and sit as a panel of thirteen. This seems unlikely, if not only because it would be difficult to fit them all in to one of the UKSC’s courtrooms (and would bring a new meaning to “packing” a court).
This development—that the UKSC will sit en banc for the first time—has only added to the intense interest around the Article 50 case. The debate around the case has provided a fascinating case study of the tensions within the UK constitution at present. But the reported decision to sit en banc needs to be put in perspective: it says much less about Brexit and much more about the evolution of UKSC practices.
Joe Tomlinson is Lecturer in Public Law at the University of Sheffield.
Jake Rylatt is a College Research Associate at Wolfson College, University of Cambridge.
Dr Duncan Fairgrieve is a Senior Fellow in Comparative Law, British Institute of International and Comparative Law; Professeur Associé, Université Paris Dauphine PSL; and a Barrister at 1 Crown Office Row Chambers.
(Suggested citation: J. Tomlinson, J. Rylatt and D. Fairgrieve, ‘And Then There Were Eleven: Some Context on the Supreme Court Sitting En Banc in the Article 50 Case’, U.K. Const. L. Blog (9th Nov 2016) (available at https://ukconstitutionallaw.org/))