Friday, 3 July 2020

A Court of Specialists: Judicial Behavior on the UK Supreme Court


Wisden will be rather thin next year, so if you like chunky facts and statistics why not console yourself with A Court of Specialists: Judicial Behavior on the UK Supreme Court, a volume to make the spotters’ eyes sparkle. Pop it on the shelf next to the UK Supreme Court Yearbook, where it will come in handy for compiling Zoom quizzes of an esoteric nature whenever lockdowns are in operation. (The American spelling reflects the key market of the publisher, OUP.)

The author, Chris Hanretty, is Professor of Politics at Royal Holloway, University of London. Although he is a political scientist, his aim is not to probe the Justices’ personal politics: ‘There has been no suggestion that politics matters for appointments to the Supreme Court. Indeed, it is difficult even to form an impression of what nominees’ politics might be.’ (What Justices may do in retirement, such as Lord Sumption’s 2019 Reith Lectures, is another matter.)

This book covers the period from the Court’s beginning in October 2009 to September 2017, so it misses out the turbulent prorogation spectacular of 2019, R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland, which did much to raise the Court’s profile among the general public. 

Professor Hanretty’s thesis is that specialisation dominates every aspect of the Court’s work, from who gets heard to who dissents. He calculates, for example, that Lord Neuberger weighed in at 74% tax/chancery before reaching the Supreme Court, while Lord Sumption, appointed from the bar with no bench form, ‘has been imputed values equal to the mean for English and Welsh judges.’

‘The argument of this book,’ he writes, ‘is that…the Supreme Court is a court of specialists, and that its work should be interpreted in that light…Although the court may sit in panels of five, seven, or nine, the bulk of its work…is carried out by…individuals who have given over a substantial part of their career to tax law, family law, criminal law, or public law. This specialization means that the effective size of each panel is much smaller. This in turn reduces the scope for disagreement, and makes it much easier to sustain higher levels of unanimity.’

When I was out in the world, and not an etiolated shielding wraith, I drew occasionally in the public seats of the UK Supreme Court. The question I was asked most often by tourists (apart from ‘Where are the toilets?’) was ‘Who’s going to win?’ Search me, but this book is for anyone engaged in Supreme Court haruspication. Although Professor Hanretty points to the turf guide which suggests that the Government and parties using the most costly counsel tend to have a good chance of success, there are no easy answers and you are cautioned to cast your net widely:

‘Betting markets [in this case Betfair]…proved accurate in the [first] Miller case. Two weeks before the court handed down its judgment, a £1 bet on the eventual winner would have given a return of just £1.23, compared to a return of £4.70 in the event of the government winning…The betting markets thus made a confident and correct prediction about the outcome of a Supreme Court case.’

That case (R (on the application of Miller and another) v Secretary of State for Exiting the European Union) is one of two appeals spotlit in the introduction. The other is R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and another, a lyrically English village green case with added maritime romance. As Lord Carnwath points out, perhaps misty-eyed, the appellants relied on Hall on the Seashore, Phear’s Rights of Water, and Stuart Moore on the Foreshore. A 1904 decision of Vaughan Williams LJ is cited: he was the uncle of Ralph Vaughan Williams and you can hear the swelling strings.

The poet George Crabbe keeps trying to break out in the scene-setting at the beginning of the judgment (Lord Neuberger and Lord Hodge), which moves to their elegiac conclusion:

‘The poet Ovid spoke of time as “the devourer of things” (“tempus edax rerum”. Metamorphoses 15.234).’

I’ll bring in the translator Arthur Golding:

Thou tyme, the eater up of things, and age of spyghtfull teene [vexation],
Destroy all things. And when that long continuance hath them bit,
You leisurely by lingering death consume them every whit.

There is no poetic soul in Miller 1, enacted before a sour and riven nation, with angry tides lapping at judges who were left undefended by a feckless Lord Chancellor. The only balm was to see the Supreme Court, at a time of unprecedented pressure, being hospitable and accessible (‘The communications could not have been better,’ wrote David Allen Green for the Financial Times), and to witness competent, articulate people at work, contrasting with the strident reverse-talent contest going on across the square.

I hesitate to judge this book by its cover because it uses one of my drawings of R (Nicklinson) v Ministry of Justice, the assisted suicide appeal. On his feet in the picture is Paul Bowen QC, representing the late Tony Nicklinson and Paul Lamb. He was leading Guy Vassall-Adams, seated to his right, who became a QC in 2016. I blogged about it here.

Nicklinson was one of the rare hyper-important cases with a panel of nine Justices instead of the normal five – not surpassed until both Miller appeals with panels of 11. Professor Hanretty uses Nicklinson to show that the UKSC may find ‘in favor of the government, but at the same time puts the government at notice that it might not be so lucky next time… The court was asked whether UK policy in relation to assisted suicide was compatible with the Convention right to respect for private life (Art. 8)…Three judges (Neuberger, Mance, and Wilson) said that it would be appropriate for the court to say whether or not the policy was compatible, but that there was insufficient evidence for them to do so in the present case…Decisions…like this suggest that judges are eminently capable of reaching decisions that are political in this sense.’

The book concludes: ‘There has been almost no study of public opinion regarding the court, of media coverage of the court and its rulings, or (save in very specific cases) the reaction to the court in the political sphere. An investigation of this kind seems necessary if we are to know whether the court’s expertise brings with it the trust of the people.

The feverish public response to Cherry/Miller 2 moved things on a bit. And we might well ask, post no-deal Brexit, who will protect the judiciary from the suspicion of a squalid government? Where would the people rather place their trust? This book takes the Human Rights Act 1998 as a given.

A Court of Specialists: Judicial Behavior on the UK Supreme Court by Chris Hanretty, OUP, £64, also an ebook