Lewis Graham: Lessons from Lord Hope’s Diaries: judicial ideology and panel selection

Even in a more transparent and open Supreme Court, glimpses behind the curtain of officialdom are seldom offered to the public. This is understandable; the independence and impartiality of the judiciary sets it apart from other branches of the state. As Lord Neuberger (The Power of Judges, p.22) has noted, to be effective, “justice has always to be detached, almost Olympian”. We may know of judges in their official capacity, but once they adopt their robes, personal accounts of their day-to-day lives generally remain off-limits.

We do occasionally get to peek behind the ‘curial veil’ when the inner workings of the courts are discussed in judicial lectures and speeches, or examined in academic research. Retired judges have recently taken to reflecting on their time as judges; in their post-retirement years, judges such as Sir Henry Brooke, Lord Dyson and Lord Brown have detailed their judicial experiences in their memoirs and blog posts.

But until recently, we have never had access to anything as immediate as Lord Hope’s Diaries, a five-volume set of works published by Avizandum Publishing over the last two years. Dating from 1978 to 2015, and covering his time from Senior Counsel all the way to Deputy President of the Supreme Court, the volumes are (largely) unedited reproductions of Lord Hope’s faithfully-compiled personal diaries. Needless to say, these diaries are the first of any modern judge to be published for a general audience (and there is certainly some disquiet about the wisdom of the decision to do so). This post largely draws upon the fifth and most recent volume, which details Hope’s thoughts on his four-year tenure on the UK Supreme Court.

Any reader hoping to find grand exigencies on the nature of justice will be disappointed by the fact that Lord Hope’s Diaries are, by and large, a supremely mundane affair. In the fifth volume, his Lordship complains about a hen party “screeching and larking about” on his plane (p.279), balks at his colleagues’ rejection of morning dress (p.213)  and is irritated by having to listen to Clive Anderson on the radio (p.313). The number of passages which detail the minutiae of various judicial ceremonies far outweighs the number which provide insight into how cases were decided or which concern the mechanics of judging. However, there are a few important passages which should give public lawyers pause for thought, concerning the role of judicial values and preferences, and in particular, how this affects judicial decision-making.

Identifying preferences

Both Lady Hale and Lord Neuberger have remarked that they do not know, and could not guess, the political persuasions of their colleagues. We might believe that, but perhaps it is not too outlandish to suggest that judges might sometimes guess what sorts of views a colleague might have in a certain case, or which arguments they are more likely to find persuasive. Judges, after all, come to know their colleagues quite well.

Occasionally, Lord Hope comments upon (at least what he perceives to be) the political or ideological inclinations of his colleagues. For his example, he remarks that fellow Scot Lord Rodger is a restrained figure, with “ideas rooted in the past Conservative government of which he was a member” (p.28). Lady Hale, by contrast, is described as holding “much more radical” views than her colleagues (p.86); in a previous volume, he had described her as a “forward and free-thinking” judge with “a strong agenda of her own” (House of Lords, p.232 & 310). Lord Hope is far less forthright about his own inclinations, although he does occasionally comment upon political matters. He shows no definitive loyalty to any single party, although he is deeply suspicious of the SNP (pp.309-310) and criticises both the Conservative party for its policies relating to human rights and legal aid, and Labour for its “disgraceful bias against landlords” (p.180). Overall, his political anxieties seem to focus on the prospects of being made to pay a higher tax rate (pp.129, 309-310).

Joshua Rozenberg has written about the “Brenda agenda” and some of the private remarks in Hope’s diary do suggest that Lady Hale’s drive to see more women in the Court caused controversy within the Court and provided an obstacle to her promotion. Her views and feminist politics were certainly well-known to Lord Hope. Indeed, he describes her as being “relentless in her pursuit of her agenda about women” (p.190) and therefore “confrontational” when she “senses an inefficiency or a gender issue” (p.176). He considers her to be “too sensitive” (p.117; read into that what you will), and out of touch as “[t]he picture that she presents of the relationship between men and women is not one which most women share” (p.149). Her agenda, he suggests, clouds her judgment.

Lord Hope clearly thought that he came to know the views and preferences of his colleagues. But, crucially, he also believed that in some cases, not only were their views identifiable, but could also predict the way they would decide cases. In a previous volume, he said that that he knew of the views his colleagues Lord Steyn and Lord Hoffmann held with regard to the Pinochet litigation and so their eventual vote was no surprise to him (House of Lords, p.68), and that they each “went in with their minds made up” on the issue of lawyer immunity too (House of Lords, p.110). Lord Steyn had apparently made his dissatisfaction about the ‘rape shield’ provisions in the Youth and Criminal Evidence Act 1999 well-known, and as such his position was “locked down from the start” (House of Lords, p.123) when said provisions were challenged under the Human Rights Act. He was even more explicit when it came to Lord Bingham, whom he charged, in some quite damning terms, with being “incapable of deciding on the law” (House of Lords, p.214) in certain politically-charged cases, describing him (along with Steyn) acting as a “campaigner… for the abolition of the mandatory death penalty” (House of Lords, p.204) rather than an independently-minded judge, and chastising him for letting his “deeply held convictions take control of him” (House of Lords, p.263).

A judge, Hope reminds himself (and, presumably, the prospective reader), ought to “put aside personal inclinations and prejudices” and refrain from “impos[ing] on the public the consequences of our own view of morality” (House of Lords p.263). Whilst judges such as Steyn and Bingham subscribed to that notion “on paper”, thinks Hope, he did not put it into practice (House of Lords, p.214). This charge really is quite startling; it is common to hear of judges taking their colleagues to task for getting the law wrong, but direct accusations of manipulating the law for personal ideological ends are both unusual and jarring to hear. Is he right? Most empirical evidence (including my own) suggests that there are differences between the way individual judges tend to decide certain types of cases, but even the most ardent legal realists would struggle to maintain that judges decide cases wholly in order to enact their ideological beliefs in the manner alleged by Lord Hope. In any case, even if he is right, could he do any better himself? His own position in the death penalty cases was the opposite of that professed by Lords Steyn and Bingham and he often found himself dissenting from their view. It is much easier to make accusations of “legal imperialism” (House of Lords p.234, an interesting choice of language to invoke in a case taking place in the Privy Council) against those whose views do not align with one’s own. How much of Hope’s own decision-making is guided by his personal views and preferences? This sort of introspection never arrives.

Panel selection

Even if it can be said that judges hold different preferences, and that this might, at least some of the time, affect the way they approach cases, this truism, we might think, is an inescapable part of being human, and so long as judges aren’t appointed for ideological reasons, we might rest easy knowing that it is impossible to ‘stack the court’. However, one problem is that in the Supreme Court, the full roster of judges do not sit on all cases. Rather, they sit in panels of five (or very occasionally more) judges at a time. The question of who sits on each case is largely decided by the court registrar, although the President and Deputy President can subsequently tinker with draft listings. There are no set rules for making the decision. Judges with particular expertise or experience in a given area might be asked to sit on a case related to that area, and judges hailing from one of the devolved institutions may be selected to sit on cases involving an appeal from that jurisdiction. Otherwise, the decision seems to be based on considerations of convenience and availability. Certainly, panel selection does not account for the sorts of judicial preferences described above.

However, Hope’s diary entries reveal something very interesting, and hitherto unexplored, about panel selection: the question who sits is not only pragmatic, but it is open to alteration. It seems that draft panels are occasionally modified occasionally to suit the judges; for example, Lord Collins asked to be removed from the panel hearing the Jewish Free Schools case for religious reasons. Life events, including illness and injury, also spurred panel switches, including on one bizarre occasion where Lord Kerr was dropped at the last-minute because of a “badly poisoned foot” (p.37).

These sorts of modifications are ostensibly neutral, and are still guided by suitability and availability. However, there is some evidence that, on occasion, draft panels were changed even when all judges due to sit were available to do so. Indeed, in one passage in his diary, Hope, presiding over a devolution case, considers excluding Lord Kerr from the panel (p.118) because of his tendency to dissent in such cases (and, by implication, for taking a position in opposition to Hope himself). The very notion that a presiding judge would remove a judge from a case because of their likely opposing views is concerning, but in the event Hope changed his mind and kept the draft panel intact, deciding that excluding Kerr would not be “a proper course for [him] to take” (p.118).

Whilst Hope resisted the temptation on that occasion, it seems like it was not altogether uncommon for certain judges to make a case for being included in a particular hearing. Hope lets slip (p.219) that Lord Judge had asked Lord Phillips to ensure that he would sit on the panel deciding the case of Adams although it is not clear whether this was done after the draft panel was drawn up, or whether Judge was included in the original draft panel. Hope also suggests that Lord Judge was ideologically committed to a position on how the law on miscarriages of justice ought to operate, and that his insistence on being included in that case was driven by a desire to achieve a certain outcome. These are just Hope’s own postulations, of course, but given that the case was a significant one, and that some aspects of the case were decided by a bare majority of 5-4, such behaviour might certainly raise some concerns.

The most worrisome example, however, comes from an entry in a previous volume (House of Lords, p.213) which suggested that something similar had occurred in respect of the Privy Council case of Watson, which concerned the legality of the death penalty in Jamaica. It seems that Lord Hoffmann, who had consistently upheld the procedure as constitutional in previous cases, had pushed for the inclusion of Edward Zacca (the former Chief Justice of Jamaica) on the panel in place of Lady Hale. According to Lord Hope, his reasons for doing so were clear: Zacca, who had previously defended the practice and was considered likely to uphold the Jamaican regime, would be more likely to agree with Lord Hoffmann than the more liberal Lady Hale.

In the end, Hoffmann’s plea was effective. Whilst the Board was unanimous in declaring the specific provisions challenged in Watson to be unconstitutional, it also decided, in two related cases handed down on the same day, that the death penalty was constitutional in both Barbados and Trinidad and Tobago. Crucially, both of these cases were decided by the same panel (including Zacca but excluding Hale) as Watson, and each by bare majority of 5-4. There is certainly a strong case that a change in the panel composition could have affected the outcome. Whilst it should be stressed that Hope’s account of Hoffmann’s behaviour is neither official nor verified, if accurate, the judges involved could certainly be accused of judicial ‘gerrymandering’, a practice all the more remarkable when considering that these Privy Council cases are some of the very few which can be said to involve a literal matter of life or death. Incidentally, Lord Hope, who agreed with Hoffmann and Zacca in all three cases, was far less critical of Hoffmann’s actions than he was of what he considered to be the unprincipled approach of Lords Bingham and Steyn (who each sided against Hoffmann and Zacca).

The Messy Ethics of Judicial Neutrality

We consider abhorrent the idea that judges could appoint certain judges to a case in order to ensure a certain result. The above statements in Lord Hope’s diaries provide some evidence that such an act was not just only possible, but occasionally occurred in reality. The very possibility of the truth of his account strikes at the heart of judicial neutrality and procedural fairness. The European Court of Human Rights has previously found breaches of Article 6 ECHR in situations (in different jurisdictional contexts to the present) where, for example, a judge has appointed themselves to a specific case in order to influence its result. How different are the actions of the judges described above?

There is little to suggest that panel selection has proved controversial in the vast majority of cases, or that judicial intervention in panel selection is, or has been, a widespread phenomenon. In addition, the veracity of Lord Hope’s accounts can be doubted, especially those relating to the actions and intentions of other judges, given their provenance as entries in a diary. Nonetheless, the possibility that certain judges have been able to influence not just the composition of a panel, but also the outcome of a case, is deeply concerning. It raises the question of whether panel selection ought to be made more transparent, or whether it should be conducted wholly independently, without any possibility of judicial modification. It adds weight to the argument that the Supreme Court should sit en banc, already mooted by academics such as Brice Dickson as well as judges such as Lord Brown. Finally, it shows why the publication of Hope’s diaries received such a negative reception from some members of the judiciary, and why they are likely to be the only judicial diaries we will get to see for some time.  

Lewis Graham is a PhD student in law at Pembroke College, University of Cambridge.

(Suggested citation: L. Graham, ‘Lessons from Lord Hope’s Diaries: judicial ideology and panel selection’, U.K. Const. L. Blog (18th June 2020) (available at https://ukconstitutionallaw.org/))