Let’s abolish the UK Supreme Court!

But what would we put in its place?

Let’s abolish the UK Supreme Court! So says Professor Derrick Wyatt QC, a distinguished former academic and practitioner, in a paper for the Policy Exchange judicial power project.

It’s fair to say that the title of his paper speaks of reform rather than abolition; that his proposals are avowedly tentative; and that he would change the Supreme Court’s name and composition rather than do away with a final tier of appeal in its entirety. But this is still a pretty radical proposal.

Supporters of the judicial power project believe the Supreme Court (pictured) is “too activist”. That’s not my view — see my recent book Enemies of the People? — and it’s not a view that Wyatt fully supports either. As he says, the same criticism could be levelled at the appellate committee of the House of Lords, which the Supreme Court replaced in 2009.

But Wyatt thinks the risk of excessive judicial activism at the final stage of the UK appellate process could be “tempered” by transferring the Supreme Court’s functions to panels of five or more senior judges assigned on a case-by-case basis from judges in the existing appellate courts — the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland, and the Inner House of the Court of Session.

These judges would spend most of their time in their respective courts of appeal. But they would move to the Supreme Court’s current building in Parliament Square (or elsewhere in the UK) when hearing appeals from the courts in which they normally sat. As Wyatt explains,

the result of the above change would be to broaden the judicial base of the final court of appeal, and to ensure that all judges sitting at the final stage of appeal were also judges deciding cases at the level below that final stage, and so remained accustomed to the discipline of writing judgments which would be subject to the scrutiny of their fellow judges. This would I believe militate against the final court of appeal being, or being seen to be, a judicial policy making centre independent of government or parliament, with perhaps a corresponding sense of entitlement to rebalance the constitutional order of things as it thought fit.

From a practical point of view, Wyatt’s proposal would increase diversity in what might be called the UK Final Court of Appeal. On the other hand, it would thin out existing appeal courts that are already under pressure. Wyatt has various transitional provisions to address this.

But the fundamental problem with his proposal is one touched upon by Professor Richard Ekins in an afterword: “how — and by whom — panels would be selected for particular cases”. Ekins inclines to the view that panels should be “formed simply on the grounds of availability, taking for granted that appellate judges are or should be capable of deciding any case before them”. But, as he seems to acknowledge, random selection is unsustainable.

In appeals from Northern Ireland — and, increasingly, from Wales — it is desirable that there should be at least one judge who has previously sat in those jurisdictions. In appeals from Scotland, it is essential. The Supreme Court tries to ensure that panels include a judge with experience of the issues under appeal. A family appeal, for example, should not be heard by a court of five family specialists — but neither should it be decided by a court of none.

As Ekins accepts, selecting the judicial panel is an “important and difficult question”. He does not explore the difficulties — but they are not hard to see.

Let us accept that, in each case, some members of an appeal court are more suitable than others to hear an appeal from their colleagues. They may be more senior. They may have specialist knowledge of crime, or trusts or whatever the issue may be. The three appeal courts currently select panels, as far as possible, to reflect those considerations. If a case is particularly difficult or important, the chief justice may sit with senior colleagues.

Who would then be sent off to the Final Court of Appeal to hear an appeal against their colleagues’ decision? Non-specialist judges? Those with less seniority?

That problem could be avoided by holding back the most appropriate judges, leaving them free to hear the final appeal. But what if there isn’t one? A case would then have been decided by a less appropriate panel for no good reason. The parties might then need to appeal — at great expense to all concerned — just to make sure their case was heard by the judges who would have heard it under the current system.

Selecting judges to sit on individual cases is an important judicial function. Who would decide which judges should hear each case in the Final Court of Appeal? The three chief justices of the United Kingdom? Two of them would know little about the candidates. Each would have to decide whether to sit themselves. And their choices could be seen as affecting the likely outcomes.

Although I do not regard the Supreme Court as too activist, there is no doubt that some judges — at all levels — are more activist than others. They may be activist by temperament. In others, it may depend on the case: Lord Reed, president of the Supreme Court, told me he was more inclined to develop the law in some areas than others. It’s because the outcome of a case may depend on the choice of judge that 11 members of the Supreme Court — the maximum — considered the constitutional challenges brought by Gina Miller in 2016 and 2019.

But that would not be possible under Wyatt’s plans: there would be too many people on the bench. Somebody — and it could only be a very senior judge — would have to choose the judges who would hear each appeal. That judge could choose colleagues who were likely to take an activist approach — precisely the problem the judicial power project seeks to challenge.

And then there are the practical problems. It’s one thing to be overturned by a higher court. It would be much more difficult to be overturned by a junior colleague who you are sitting with the following week. Perhaps that’s the point: in his introduction to Wyatt’s paper, Lord Thomas of Cwmgiedd, the former lord chief justice, asks whether “the prospect of judgments being scrutinised by fellow judges exercising an appellate function encourage self-restraint and improve accountability”. It might; but do we really want judges to neuter themselves?

I have enjoyed thinking about Wyatt’s ideas. His proposals deserve serious debate at academic seminars. But I don’t think the 12 justices of the Supreme Court will be looking for new jobs any time soon.

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