Fresh from inaugurating its Independent Review of Administrative Law, this government is still not finished with the judiciary, at least according to recent policy proposals leaked to the Sunday Telegraph. Downing Street has also turned its eye onto the Supreme Court and its structure and composition.
According to the leaked policy proposals, the government’s reforms would revolutionise the composition of the Court. Rather than having an elite cadre of twelve Supreme Court justices, there would be a large pool of ‘appeal court judges’, which would, in the first instance, presumably incorporate all the current justices of the Supreme Court and those judges sitting in the Court of Appeal. For each case that was brought before this re-imagined final court of appeal, a panel of judges would be selected from the pool in a fashion similar to the present panel selection process, albeit excluding those judges who heard the case at a lower level.
The mooted reforms are a near mirror of those put forward by Derrick Wyatt QC and Richard Ekins in a paper published by the Judicial Power Project (JPP) over the summer. Consistent with much of the JPP’s animating philosophy, Wyatt and Ekins argue that the Supreme Court has become too activist (although Wyatt is careful to distinguish his philosophy from Ekins’ more vehement judicial scepticism), and that it needs a clear reminder that it is not the ultimate constitutional authority in the kingdom. Rather than focussing upon reining in the powers of the Court directly, their proposals instead seek to implicitly degrade the authority of the Court by expanding its membership.
No longer would the Court comprise an elite dozen elevated to the Court, generally from the Court of Appeal (or, less frequently, the High Court), although there are exceptions, most notably Lord Sumption’s promotion to the Court directly from practice at the Bar, and more recently, Lord Burrows, the first justice to be promoted directly from academia. Instead, the pool of ‘Supreme Court’ judges would incorporate at least 51 judges (the current 39 Lord and Lady Justices of Appeal and the 12 Justices of the Supreme Court), although Wyatt envisages an expanded Court of Appeal bench, with only those who have served at least two years eligible to sit on the ‘final’ court. Given the Supreme Court has gone to significant lengths since its inauguration to be a more transparent and accessible institution, raising the public’s awareness of its membership and its role in the British constitution, moving towards an ad hoc model like Wyatt’s would stymie this progress. Coupled with this is the risk that it would degrade the standing of the justices in the public’s eye. Even if the public at large have a relatively spartan understanding of the Supreme Court and its justices, it is probable that they are aware that the Supreme Court is the UK’s apex court and contains a group of justices who are among the most eminent in the land. Shifting to a broader panel of justices would likely diminish the public’s faith in the decisions of the Court, and this would, in turn, diminish the force of the Supreme Court’s decisions, making it easier, if a minister was so minded, to criticise or disregard a judgment.
Furthermore, the proposed reforms would also incorporate the renaming of the Supreme Court, whether returning to the House of Lords nomenclature (as Ekins prefers, arguing that the adjective ‘Supreme’ alone has encouraged activism on the justices’ part- the merit of which I question here), or to another less grandiose title, such as the ‘Upper Court of Appeal’ (as Wyatt prefers). In the eyes of both, this renaming would possibly inhibit ‘excessive judicial activism’, on the basis that the justices would no longer be ‘distinguished by title and by composition’ from their judicial brethren, although Wyatt recognises that such a change ‘would be unlikely of itself to make any significant change in the judicial approach’.
Wyatt seemingly envisages a broader range of judges serving on the final court as a way of preventing ‘a small corps of judges’ from becoming ‘detached’ from the ‘range of views and general outlook of the rest of the judiciary’. This reform, he suggests, would deter the final court from deciding ‘cases on policy grounds, without disclosing an adequate or convincing legal basis’, an institutional hubris that Wyatt argues the House of Lords was equally as susceptible to as the Supreme Court now is, pointing to the Lords’ decisions in Anisminic and CCSU v Minister for Civil Service as examples of when they ruled like a ‘constitutional court with a sense of mission’, ‘rather than simply interpreted a statute’.
Much of Wyatt’s argument is premised upon this ‘detachment’, confident that judges elevated to the Supreme Court develop a unique conceit by virtue of their occupation of the upper bench, that this is a conceit that leads them to develop novel points of law that more closely resemble policy than legal judgment, and that this could be remedied by ensuring that they are still subject to collegial scrutiny on occasion. Even if we set aside the question of whether the Supreme Court lapses into policy more than jurisprudence, it is not clear firstly, that this alleged hubris is unique to the Supreme Court justices, and secondly, that if the Supreme Court was broadened, it would resolve the issue as framed by Wyatt.
A ’detached’ Supreme Court?
It is debatable as to whether the courts below the Supreme Court are always the more deferential. Even in the cases referenced by Wyatt, there is no consistent judicial stance, with the High Court and the Court of Appeal frequently coming to dichotomous conclusions. For instance, Wyatt relies upon the CCSU decision to show how the House of Lords, as well as the Supreme Court, was prone to coming to ‘policy’ decisions. In the sequence of decisions there, Glidewell J. first ruled in the High Court that there was no reason to treat the exercise of the power in question any differently because it was issued under the royal prerogative. Indeed, Glidewell took the most aggressive stance of any of the judges to hear the case, ruling that the court not only had jurisdiction over the use of the royal prerogative, but that the national security considerations in play were insufficient to justify his deferring to the executive. While the Court of Appeal did intervene, overturning Glidewell’s decision and returning the law to its original, more deferential stance, this was short-lived, with the House of Lords establishing that the executive’s use of the royal prerogative is subject to judicial oversight. In Anisminic, another exemplar of Wyatt’s, the sequence of judgments was similar, with the High Court once more pioneering the aggressive stance closest to the ultimate decision of the House of Lords.
Admittedly, in the cases Wyatt cites, Anisminic, and CCSU, the Court of Appeal has tended to be the more deferential, choosing to overturn the High Court (where required) and return the state of the law to the status quo. However, it does not follow from this that the Court of Appeal more accurately represents the opinions of the appellate judiciary, and that the Court of Appeal judges, if they were sitting on the Supreme Court, would replicate the decisions they delivered on the lower court. Given that much of the Supreme Court bench is drawn from the Court of Appeal, unless by some coincidence, the Supreme Court selection process elevates judges who are instinctively more activist in their jurisprudence, there is little reason to suspect that the Supreme Court judges are out of step with their judicial brethren in the lower courts.
What may more effectively explain the shift in judicial philosophy between the upper and lower courts of appeal is the fact that the justices are wearing different hats. The role of the Court of Appeal is distinct from the role of the Supreme Court, most obviously in that there is no further route to appeal. Any flawed decision, especially any decision that has significant ramifications for the functioning of the UK’s constitution, is likely to remain in place for years, if not decades, and may have dramatic and unforeseen consequences. For instance, had Cherry/Miller II been decided the other way, the executive would have been granted near unbounded power over parliament, able to make it sit and depart at a moment’s notice- it would have shifted the UK’s constitution towards a monarchical model, not a democratic one. Such concerns do not press as heavily upon judges in the Court of Appeal, who can be reasonably confident that if they err in the law, and justices on the Supreme Court share that view, the decision can be reconsidered once more.
Moreover, the Court of Appeal are also more stringently bound by precedent, unable to develop or change the laws with the same freedom as the final court of appeal. Therefore, in cases such as Cherry/Miller II, where the presumptive position was that the prorogation was not susceptible to scrutiny, it would have been more constitutionally novel for the Court of Appeal to have developed the law as to when the prime minister exceeded the four corners of his powers in proroguing Parliament than for the Supreme Court to do so.
Taking this into account, the likely consequence of a system resembling Wyatt’s would not be that the Supreme Court would become more moderate, but simply that there would be a more diverse range of judges continuing to hand down judgments broadly consistent with the Supreme Court’s current jurisprudence. Judges would become adept at wearing two hats. When sitting as part of the lower Court of Appeal, they would be likely to remain more moderate, cautious of advancing the law too markedly, but when sitting as part of the Supreme Court, would be more constitutionally ambitious. Indeed, it may be that rather than inhibiting Supreme Court judges, Wyatt’s proposal radicalises Court of Appeal judges, who become more confident in their jurisprudence through also sitting on the final court of appeal, and so become more willing to push the law on, perhaps seeking to influence their colleagues who may come to review their decision. The prospect of scrutiny does not necessarily, as Wyatt would have it ‘militate against the final court of appeal being…a judicial policy making centre…’.
Avoiding the politicisation of judicial appointments
As well as mitigating the risk of ‘judicial policy making’, Wyatt justifies his proposal on the basis that it would prevent the judicial appointments process becoming unduly politicised. He argues that in countries which do have a ‘small elite corps of judges’, debates about ‘excessive judicial activism are the norm rather than the exception’, and that a ‘common antidote’ is for the legislature to become involved in judicial selection. Consequently, nudging the Supreme Court in a direction that would deter it from judicial activism would diminish the calls for the Houses of Parliament to get a say in who joined the upper echelons of the judiciary.
Wyatt is right to be alarmed about the prospect of the politicisation of judicial appointments, but the solution to a flawed proposal should not be to offer a halfway house as a concession. To allow the executive and the legislature to become more involved in judicial appointments would be a manifest error, as the increasingly rancorous debates over judicial appointments (at both the Supreme Court and federal level) in the United States has shown. Rather than trying to mollify a frustrated government, the case for a truly independent judiciary- in its operations and in its appointments- should be made, defending the appointments system on its own merits.
Beyond this, there are legitimate concerns as to what the consequences of such a shifting court would be. At the heart of the rule of law is the need for judicial decisions to be accepted and for them to be stable. Even with twelve justices on the Supreme Court, there are intermittent concerns as to whether a differently constituted panel would have come to a different decision, something that other countries’ final courts of appeal, like the US Supreme Court, avoid by having the court permanently sitting en banc. Increasing the number of potential judges only exacerbates such a risk. At present, when a matter is decided, even a relatively controversial one such as assisted suicide, most affected parties accept the issue as closed for the foreseeable future. If parties, particularly campaigning groups, thought that a new panel, differently constituted, might be willing to change the law, they may be more willing to frequently challenge the law.
Moreover, a stable coterie of judges allows them to develop their jurisprudence in a fashion that is coherent. Rather than having fifty competing judicial philosophies, all interweaving themselves across different areas of case law, we only have twelve, with justices given the opportunity to develop their philosophy and consider the overall coherence of the law, particularly in related fields. For instance, recent years in constitutional law have seen fundamental elements of the rule of law elevated in a reasonably coherent manner, such as the need for there to be consistent access to the courts, (as in R(Privacy International) v IPT and R(Cart) v UT and for such access not to be inhibited by financial hurdles (as in R(UNISON) v Lord Chancellor). Some may disagree with such jurisprudence, but such an approach is at least coherent, rather than having a sequence of decisions that cut across each other.
Issues over practicalities also abound. The panel selection process is currently fairly straightforward. As Lord Neuberger has said, panels are ‘never selected in order to achieve a particular result’. Instead, they are made by the Court’s registrar and the President (or Deputy President) on the basis of several factors. These include the need to ensure that the panel includes at least one justice with expertise in the case at hand and justices with ‘more general knowledge and legal expertise’ that they can ‘bring to bear’, as well as, more prosaically, ensuring that the workload of all the justices is relatively equal, and that there is a fair distribution of the ‘more interesting’ cases. This process would become exceedingly complex if fifty would-be justices needed to be considered. There may also be greater competition for cases, with judges possibly lobbying for cases in which they have a greater interest, and more willingness for judges, if they felt their peers had erred, to overturn precedent, while the question of what cases should be taken up would also become practically challenging.
There would also, however, be some advantages, improving diversity foremost among them. The Supreme Court has a terrible track record with regards to justices from an ethnic minority background, with all justices so far having been white. Incorporating judges from the Court of Appeal, even though minority groups are still underrepresented there (with 7% of Court of Appeal judges being of BAME background according to the 2020 diversity statistics), would improve the ethnic diversity of the Court instantaneously. Similarly, while the Supreme Court has made progress on gender equality, with Baroness Hale the first female president, when Lady Black retires this Christmas, there will be only one woman, Lady Arden, sitting on the Court. In contrast, the Court of Appeal, while doing only a little better in percentage terms, at least has eight female judges sitting on it. A broader panel would also resolve the relative overrepresentation of justices from the constituent nations, with spaces perhaps still reserved for justices from Northern Ireland and Scotland, but at a rate which reflects those nations’ share of the UK population and the number of pertinent cases that come before the final court.
Pursuing structural reform in order to bring about substantive change is always a challenging endeavour. Should the government seek to enact changes like those proposed by Wyatt in order to constrain the judiciary, they may well be surprised- and not pleasantly- by what results emerge. If these proposals were pursued purely to bring about greater judicial diversity, or to ensure that the judiciary continued to attract the most talented lawyers, they would be likely to deliver. However, enacting such reforms in pursuit of shifting the judicial mindset, even if you accept that the judicial mindset needs to be changed, is fraught with risk.
My thanks to Alison Young and Michael Gordon for their valuable comments and corrections. Any errors, as ever, are mine alone.
Nicholas Reed Langen edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap
(Suggested citation: N. Reed Langen, ‘Reforming the Supreme Court’, U.K. Const. L. Blog (1st Dec. 2020) (available at https://ukconstitutionallaw.org/))