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Book reviews

18 August 14

Reviews of Final Judgment: The Last Law Lords and the Supreme Court (Paterson); Human Rights and the United Kingdom Supreme Court (Dickson)

by Alastair Brown, David J Dickson (review editor)

Final Judgment: The Last Law Lords and the Supreme Court

Alan Paterson

PUBLISHER: HART PUBLISHING

ISBN: 978-1849463836

PRICE: £20 (from the publisher)

In this book, Professor Paterson revisits the way in which judges in the UK’s final appellate court go about taking decisions. The subject is one which he first addressed nearly 40 years ago. His thesis is that, although the nature and content of the dialogues between the judges and those with whom they interact when making their decisions may have changed, they remain "the key to understanding judicial decision making in the UK's final court today", by which I take him to mean that they are of pre-eminent importance in understanding the work of the court, rather than that they occupy the whole territory, to the exclusion of any other sources of insight.

Professor Paterson's methodology has two particularly significant components. One of them is examination of the judges' notebooks, including in particular those of Lord Bingham. It appears that they must be more legible and less cryptic than shrieval notebooks tend to be. The most significant component in the methodology, however, is what Professor Paterson calls “elite interviews” with the judges themselves. It is clear that those interviews have provided an invaluable insight into the way in which the court works, and Professor Paterson comments most favourably on the level of trust that interviewees, both 40 years ago and now, have been prepared to repose in an academic researcher whom they hardly know. That probably says at least as much about Professor Paterson's professionalism (both then and now) and the reputation which he has gained as it does about the accessibility of Supreme Court judges.

Professor Paterson examines dialogues with a range of people and bodies. They include counsel, other judges of the court, judicial assistants, the Court of Appeal, Parliament and Government. All are illuminating. The two which are discussed in greatest depth are the dialogue with counsel and the dialogue with other judges of the court. The chapter on the dialogue with counsel should be read by anyone who claims to be an advocate at any level. Much of what Professor Paterson records would apply in any court or tribunal.

It is, however, the dialogue (or, better, the dialogues, plural) between the judges themselves to which Professor Paterson devotes the greatest part of the book. He describes the process of arriving at a decision in considerable detail, beginning at the earliest stage, with the grant of leave to appeal. He examines the oral hearing, calling attention to the fact that a proportion of judicial interventions at that stage, although ostensibly aimed at counsel, are in reality intended for judicial colleagues. He gives an account of the first conference, held at the end of the oral hearing, at which preliminary views are expressed and discussed. Then, he describes the drafting stage, offering detailed analysis of the extent to which judges write opinions. The graph showing the percentage of cases in which there was a single judgment is especially striking. The figure was close to 70% in the mid-1990s but below 20% between 2000 and 2009. He examines the composition of the panel and the extent to which judges change their minds as the drafting process goes on (and why).

The material is clearly researched comprehensively and analysed carefully. The account which he gives is illuminating, though I do have some concerns about his tendency to write in terms of the majority in any particular case "winning". It seems to me to be much more likely that all of the judges in a given case want to get the right result, that the answer is not obvious (or it would not have reached the Supreme Court), and that, with relatively rare exceptions, what is going on is simply a process of thinking through and assessing the arguments. Professor Paterson, however, has interviewed the Supreme Court judges and I have not.

In his final chapter, Professor Paterson explains that the work has "focused on the explanatory power of examining the work of the UK's final court through the lens of the dialogues that the judges engage in when making judicial decisions". Those dialogues are, he argues, "a particularly fruitful line of investigation". It is indisputable that, by this approach, he has shed much light on a process which is, for most practitioners, completely arcane. From our earliest days at law school, we have been accustomed to reading what the House of Lords (and, more recently, the Judicial Committee of the Privy Council and now the Supreme Court) has said. Once we reached honours or postgraduate level, we read what the commentators had to say about what the court had said. Some counsel and some solicitors have been to the court. So, if Trip Advisor is to be believed, have significant numbers of tourists. The court is, apparently, in the top 25% of tourist attractions in London. Very few of us, however, have the slightest idea how the judges go about their decision making. Yet such an understanding is, arguably, a most important component in understanding the decisions themselves.

For example, one of the points which Professor Paterson makes is that the strength of the court's desire to produce a single judgment has varied over time, and with it the extent to which the court has spoken with a single voice. Settling the terms of an opinion of the whole court is a very different exercise from gathering a series of individual opinions. And, of course, from the point of view of the practitioner advising a client (or of a judge in a lower court trying to decide a case in which a Supreme Court decision has been cited), a single judgment makes it very much easier to discover the ratio. Where there are split judgments, that becomes much more difficult, especially where the reasoning of the majority is subjected, in a dissent, to the criticism of the cogency of that advanced by Lord Rodger in Martin v HM Advocate 2010 SLT 412. Professor Paterson discusses that decision in several places but does point out that, although Lord Rodger's critique of the reasoning of the majority was "unusually blunt", Martin was the only Scots case in which Lords Hope and Rodger ever failed to agree.

Professor Paterson argues that judicial decision making is a social activity, with the dialogues set out in this work at its heart. He calls it the "key optic". Whether or not one is convinced at the end of the day of the pre-eminent importance of those dialogues, one must concede that Professor Paterson makes a good case. The thesis is, moreover, an important one, not least because it might have application to other tribunals with more than one judicial member. If judicial decision making is also a social activity in the Inner House, in the Justiciary Appeal Court and, in due course, the proposed Sheriff Appeal Court, that would have very significant consequences for advocacy and for the giving of advice. Professor Paterson's book deserves to be read thoroughly and thoughtfully by a wide audience, both within and outside the legal profession. I recommend it without hesitation.

Sheriff Alastair N Brown

 

Human Rights and the United Kingdom Supreme Court

Brice Dickson

PUBLISHER: OXFORD UNIVERSITY PRESS

ISBN: 978-0199697458

PRICE: £75

This excellent book analyses the judgments of the Supreme Court through the prism of the European Convention on Human Rights. In addition, the author provides clear, thoughtful commentary on the decisions of the court. As such the book is a ready touchstone for those wishing to understand both the case law and the jurisprudence of the court in relation to each article of the Convention.

As Professor Paterson's book demonstrates, the Justices of the Court are prepared to engage with a wide audience on their work, whether in a television programme or a speech. Recently the President of the Court, Lord Neuberger, delivering a speech in Northern Ireland when he was addressing the current legal debate of the influence of EU law on the respective legal systems of these islands, observed: "Two centrally important aspects of the context in which the controversy about our future in Europe is taking place are our history and our culture. A consideration of our history and culture doesn’t give us the solution to the controversy, but it informs any search for a solution. And it reminds us that history will judge our decisions – a thought which is rather frightening. Future generations will assess our decisions through what for them will be the relatively clear lens of ascertainable recent history, whereas we have to reach those decisions by looking through the impenetrable fog of the unknowable future. But we owe it to those generations, and indeed to ourselves, to understand the context in which the issues are being debated."

In relation to the perceived influence of European supra-national court control, Lord Neuberger commented: "The notion, familiar to any reader of British newspapers, that it is unacceptable for 'unelected judges... [to] impos[e] a diktat' on a democratically elected parliament, is peculiarly British. Most countries accept the notion that there are times when it is a good thing for the rule of law that independent judges, who do not need to court short term popularity or worry about re-election, should be able to act as a control on what would otherwise be an unbridled legislature”.

This book demonstrates the extent to which the Supreme Court has taken account of and been influenced by the jurisprudence of the Strasbourg court. Each chapter considers an article of the Convention, with relevant aspects analysed and ending with a brief conclusion. The chapters on article 5, 6 and 8 are particularly strong. Under article 6, the author considers illegally obtained evidence, anonymity, confiscation and post-conviction procedure, and what is captured of consideration under article 6. Under consideration of article 8, Professor Dickson initially considers the development of the House of Lords' and subsequently the Supreme Court's approach to and jurisprudential engagement with article 8, with reference to the decision of the majority in Pretty [2001] UKHL 61 where it was held that article 8 was not engaged where someone sought to end their own life, whereas the ECtHR followed Lord Hope in recognising that the right to private life was engaged.

This recognition has been further elucidated in Nicklinson [2014] UKSC 38, where "Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson hold that, within the constitutional settlement of the United Kingdom, the court has the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide." This is an important book and, as with Professor Paterson's book, deserves to be widely read. Indeed they complement each other.

David J Dickson, solicitor advocate

 

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