Reforming the UK’s appeal courts
Do we really want to restructure the Supreme Court after little more than 11 years?
Just over two months ago, the Sunday Telegraph reported that minsters were discussing plans to give the UK Supreme Court a new name, reduce its justices in number from the current 12 and bring in judges with “specialist” knowledge to hear individual cases.
A “Tory source” told the paper of a feeling in government that Tony Blair and his lord chancellor, Lord Falconer of Thoroton, had “made a complete dog’s dinner” of the constitutional reforms enacted in 2005, under which the law lords — judges appointed to the House of Lords so that they could sit as a final court of appeal — were replaced by a free-standing Supreme Court.
“Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don’t want to be,” the Telegraph’s source said.
Falconer, who is now shadow attorney general, hoped “these ill-conceived and ill-thought out plans will not see the light of day”. He speculated that the proposals emanated either from Ministry of Justice officials and their secretary of state Robert Buckland “who are trying to impress No 10; or they are the last gasps of the so-called weirdos at No 10 who answered to Dominic Cummings”.
The former seems more likely.
Buckland sets out his stall
Giving evidence to a Commons committee last month, the justice secretary explained that, in place of the all-encompassing constitution, democracy and rights commission that had been promised in the 2019 Conservative manifesto, he had launched a series of one-off reviews. The first two — into administrative law (judicial review) and the Human Rights Act 1998 — were already under way.
“Other governments”, Buckland added pointedly, had embarked on “quite significant constitutional reform without any attempt to create a committee of inquiry or an independent review or a commission”. That was an accurate swipe at Labour’s Constitutional Reform Act 2005 — another area of the law he was looking at:
I have not committed to a commission on it. I am open-minded as to the type of consultation and the way that we do it. But I am thinking through carefully the best process that we can employ for it.
As Buckland explained, the 2005 act reformed the role of the lord chancellor and set up the Supreme Court. Is that legislation now up for review?
I am not going to commit, here and now, to saying which parts would not be looked at and which would be. But clearly, 15 years on, it is entirely legitimate for us to consider it afresh and to see whether we can improve upon it.
If that’s a reference to the Supreme Court, then 15 years is a bit of an exaggeration: the court has been open for little more than 11 years. But there is clearly something going on here.
Where did all this come from?
At the end of last July, a distinguished former academic and practitioner published some pretty radical proposals for reforming the Supreme Court.
Professor Derrick Wyatt QC was concerned by the risk of excessive judicial activism at the final stage of the UK appellate process. He thought that 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.
Wyatt’s proposals were published by the Policy Exchange judicial power project, together with a foreword from the former lord chief justice Lord Thomas of Cwmgiedd and a response by Professor Richard Ekins, the project’s director. I offered some criticisms in a post I wrote here in August. Jonathan Fisher QC went further in a paper published by the Society of Conservative Lawyers a month later:
If there is a strain of judicial activism running through the veins of the senior echelons of the judiciary, a more nuanced solution is required. Further, the proposed reforms are flawed in other respects. Abolishing the Supreme Court would undermine the union with Scotland and the devolution settlement. The line of precedent would be weakened if decisions of the Final or Upper Court of Appeal were made by judges of the same standing as those sitting in the court below.
The continuity of a permanent bench of Supreme Court justices would also be lost. A small number of Supreme Court justices, such as the president and deputy president, develop a high profile within the legal profession which assists in providing a focal point at the pinnacle of the judicial ladder and building public confidence in the wider community. The proposals put forward by the discussants will devalue the significance of the highest appeal court, and the clue lies in the language which is used. The language of supremacy (Supreme Court) connotes superiority, whereas finality (Final or Upper Court of Appeal) suggests the end of a process.
The answer to the challenge of judicial activism lies not in an act of constitutional dismantlement but in the adequate articulation of the core principles by which the courts, to include the Supreme Court, are obliged to discharge their functions.
The project fights back
The judicial power project has now responded by publishing a series of papers. I’ll consider each of them in turn:
Robert Stevens is the Herbert Smith Freehills Professor of English Private Law, University of Oxford (and not to be confused with the Professor Robert Stevens who was Master of Pembroke College, Oxford, from 1993 to 2001 and who died four days after this piece was published).
He begins his paper by dissociating himself from two “bad arguments” for reform:
First the claim that the change of venue and title from the Judicial Committee of the House of Lords to the Supreme Court made a substantive difference…
Second is the claim that there has been an increase in inappropriate judicial activism.
But he offers seven further arguments in support of Wyatt’s proposals:
Diversity: there are likely to be fewer white men in a court of 50 than in a court of 12.
Representation: Scotland and Northern Ireland are currently simultaneously under- and over-represented on the Supreme Court.
Lack of specialist knowledge: Wyatt’s proposals would allow the composition of the court to include more members with practical expertise in specific areas.
Workloads: the work could be distributed more equitably among appeal judges.
Protection from political interference: we can protect our judges better by anonymising them in a larger group.
Courts-within-a-court: a rotating panel would reduce the influence of able and dominant personalities.
Continuity: Supreme Court justices do the same job as members of other appeal courts.
I can’t say I find any of these arguments persuasive. As I noted two weeks ago, the Supreme Court began this term with only 10 justices. No fewer than eight appeal judges have been brought in to make up the numbers and “gain experience”. There’s a lot you can do without ripping up the system.
Stevens then dismisses the two objections I raised. The first was how — and by whom — panels would be selected for particular cases:
This seems trivial. We need a basic rotation rule, modified by expertise and availability. A more complex, but hardly Byzantine, version of precisely the system currently in operation.
My second objection was broader: it’s one thing to be overturned by a higher court but much more difficult to be overturned by a junior colleague who you are sitting with the following week. But Stevens was unimpressed:
This suggests a degree of timidity that is not my experience of senior members of the judiciary.
Kate Malleson is Professor of Law, Queen Mary, University of London.
She supports greater diversity. But she concedes that “reforms to the structure or processes of the courts or the judicial appointments process have very little effect” on the diversity of a court.
I agree with her aims and I agree with her conclusion that renaming or restructuring the court would make little difference to the diversity of the judges sitting in it.
John Larkin was Attorney General for Northern Ireland from 2010 to 2020.
He suggests, tentatively, that the second Miller case might have been decided differently if it had come before the old law lords. As members of the Upper House, they might have concluded that prorogation was a “proceeding in parliament” and therefore immune from review.
He may well be right. But imagine trying to explain the law lords to anyone unfamiliar with them. Who would believe that a House of Lords committee, giving judgment in one of the two chambers of parliament, was independent of the executive whose party sat on the government benches in that house?
Legislators would have shown more restraint, Larkin argues. Perhaps so. Less than 25 years ago most of the law lords saw nothing wrong with taking part in parliamentary debates. As I noted in the introduction to my book Trial of Strength (1997), on 27 January of that year the home secretary spent the morning trying to persuade the law lords that he, a politician, could behave as a judge. In the afternoon, the law lords tried to persuade the home secretary that they, as judges, could behave as politicians. The latter should have been unacceptable even then.
Sir Patrick Elias was a Lord Justice of Appeal until his retirement in 2017.
He offers a measured, thoughtful response:
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-Human Rights Act, 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.
Elias then explains why he hopes Wyatt’s “bold, radical and imaginative proposal for institutional change” will not be adopted:
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 Wyatt 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…
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…
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.
Richard Ekins is Professor of Law and Constitutional Government, University of Oxford.
He agrees with Larkin and Elias that the Supreme Court has, over time, become more assertive than the appellate committee of the House of Lords from which it emerged:
Renaming the Supreme Court as the Upper Court of Appeal would be a simple, cost-free change, which would help encourage a change in judicial culture without any threat to judicial independence or the stability and integrity of the legal system.
Should the court be restructured, though?
My initial concern about Professor Wyatt’s proposal was that it might undermine a stable appellate hierarchy. That said, I did not think that it would result in any loss of judicial quality. However, Patrick Elias makes a powerful case that for the highest court to discharge its role effectively its members must form a judicial elite, which means in part that truly outstanding judges — Lord Bingham, Lord Hoffmann — are likely to serve on the court.
It would be a loss for the legal system if such judges were not routinely to be involved in deciding final appeals and it would weaken the force of precedent if final appellate jurisdiction was not exercised by them. On reflection, this seems to me a compelling point. Relatedly, if reform were to threaten the collegiality of the Court of Appeal that would be a strong reason not to proceed.
Derrick Wyatt QC is Emeritus Professor of Law, University of Oxford.
In a detailed response, he accepts that “the trickiest procedural problem” for implementing his proposal would be the mechanism for choosing the judges. But he agrees with Stevens that there should be “a basic rotation rule, modified by expertise and availability”.
What about my objection, shared by Elias and Fisher, that giving a second bite of the cherry to judges of the same rank as those who had decided the first appeal would weaken respect for the final ruling?
Something of the sort happens in Scotland, Wyatt says, and the judges would be going into this with their eyes open.
More broadly, though, he is open to argument:
It might be that the original proposal could be adapted to meet certain of the criticisms which have been made of it, but equally, it might be that the current UK appeal courts would find the original proposal more attractive than have some of its critics. They should certainly be asked.
It looks as if the government may do just that. But I suspect that most of the appeal judges will prefer the devil they know.