What happened on the day that four UK Supreme Court Justices took questions at the Law Society of Scotland
Thursday, 15 June 2017. Not just the conclusion of the first ever sitting outside London of the UK's highest court, but the day four of its members took the platform at the Law Society of Scotland to talk about the UK Supreme Court and its work.Lord Neuberger, the outgoing President, his deputy Lady Hale, and the two Scottish Justices, Lord Reed and Lord Hodge, spent over an hour highlighting aspects of the court and fielding impromptu questions from the floor – all chaired by Society President Graham Matthews, who declared that with such a stellar lineup he felt more like Graham Norton. The only thing missing was the red chair!
Accessibility: Lady Hale
For roughly the first half, each Justice in turn took up a particular theme relating to the court. Lady Hale opened by describing the court building itself, and how it had been set up from the outset to try and present an open and transparent face. A light, airy building with unobtrusive security, where people can just walk in off the street, the court is not as boring a place for the public as might be supposed.
At an interactive exhibition in the basement you can pretend to be a Justice, and see whether you would have decided cases the same way as the court. School parties are frequently welcomed (360 of them last year); and the court also regularly hosts student moots – even Scottish students sometimes travel to take up the opportunity.
Then there are the forms of communication to maximise accessibility. Proceedings have been filmed since the court's inception in 2009; live streaming began in 2014 and is archived from 2015 (all under the court's control so there is no threat to the probity or integrity of the proceedings). And judgments are issued along with a press summary and a “piece to camera” delivered to break the news of a decision.
The court tries to make hearings as efficient as possible – not like the US or Canadian Supreme Courts, which only allow half an hour or an hour per party, but they are normally kept within one or two days and parties have to decide how to make the best use of their time. Papers are bundled electronically. A user group provides feedback on experiments with new practices.
Miller case: Lord Neuberger
The President followed with a focus on the Miller appeal – the Brexit/article 50 case – and the challenges it posed. One was the “bind” of being unable to speak out after the High Court ruling and its accompanying press frenzy – including all the speculation about the individual Justices and the influences likely to push them to a particular decision.
It was decided that the court had to be especially careful of public perceptions. Apart from a set number of seats for lawyers and journalists, the remainder were for the public. Extra channels were set up for streaming. Transcripts were issued. The communications team kept up briefings for journalists. Counsel's time was allocated between the various interests represented, over the four days of the hearing – the longest the court now allows.
All 11 Justices sat due to the importance of the case – if a bench of nine had returned a five-four majority, speculation would have been inevitable as to whether the other two would have tipped the balance.
Lord Neuberger admitted to having been quite nervous when the case actually began. It was emphasised that the case would be decided as a matter of law – and the various measures taken appeared to achieve acceptance that this was the case, even by those who disagreed with the result. Again, it was agreed that the majority view should be expressed in one judgment, for clarity and simplicity. The “three heroes” who dissented, one of them Lord Reed, wrote their separate opinions.
Devolution: Lord Hodge
Lord Hodge turned to the court's devolution jurisdiction. Eighteen cases had been heard from Scotland since 2009, three from Wales and one from Northern Ireland. Interestingly, the Scottish appeals were almost all brought by individuals or private interests, whereas the Welsh were on the reference of law officers. The Scots cases included the tail end of the series of important criminal decisions of the early years of devolution, such as Cadder, but since then there had been a “marked falling off” of criminal matters.
Civil appeals, on the other hand, maintained a “small but steady flow”, including AXA (pleural plaques), Imperial Tobacco, Salvesen v Riddell, Moohan (prisoner voting), the case on the named person scheme and now the imminent Scotch whisky appeal on alcohol pricing.
Europe issues: Lord Reed
Finally, Lord Reed looked to the future, with reference to the European Convention on Human Rights, and the European Union.
On the former, because of the way the Human Rights Act operates, the court explains for the benefit of the Strasbourg court how it sees the Convention applying in the context of the UK. He suggested privacy as a right that is becoming increasingly important because of the internet and the storage of data, and one in which the courts will have to address how to balance the competing interests. Another is measures relating to terrorism suspects, and the scope for monitoring and restricting their movements.
But the first guarantee is the right to life, which the courts take into account in applying the other articles of the Convention.
As for the EU, speaking ahead of the publication of the Withdrawal Bill, Lord Reed said it would be important to identify as many of the legal snags as possible. There would be a role for legal professionals in trying to think about the problems to be addressed. The questions (some of which the bill does attempt to address) include:
- Will it be possible to rely after Brexit day on rights accrued before then?
- Will it be possible to challenge UK law on the basis of EU law after Brexit?
- What about preliminary references outstanding on that day?
- What status will CJEU judgments have after Brexit for a court applying laws derived from EU law?
- What about vires control in the Scotland Act? Will the division between reserved and devolved matters follow the present scheme?
Resolving these, and other questions to be identified, “will be an important task”.
From the floor
The first question from the audience was whether the court allocates certain types of case to certain Justices.
“It's an interesting and difficult function to select a panel”, Lord Neuberger replied. The registrar proposes panel membership and the court considers it. It tries to ensure a spread of work, and also that relevant expertise is brought to bear, though no one has any absolute expectation to be on a particular panel. There will not be five Justices expert on any topic, so there will always be non-experts on the panel – who may ask somewhat offbeat questions of counsel! There will be at least one Scottish Justice on a Scottish appeal. The court tries to ensure a balanced panel where Justices are thought to have different views.
Lady Hale added that there is an assumption that five heads are better than three, but the court also needs different perspectives. Clients should not be surprised if a particular expert Justice is not on the panel.
How does the court allocate who will give the leading judgment?
“During the hearing, you can see that some Justices really get their teeth into a case”, Lord Reed answered. “If they are not in the minority, they may be asked to. Or it may be if someone gives a cogent presentation, or has a relevant background. But the decision is for the presiding judge.” However the judgment that emerges is “the product of a collegiate process”, as panel members give feedback and suggestions for revisal on draft judgments. Sometimes a colleague might even circulate a draft with an alternative perspective that “sabotages” the process. Also two or three Justices may collaborate on the judgment, something he enjoys as otherwise it can be a “solitary life”.
The duty is spread reasonably evenly, Lady Hale observed. The court does not want to have one “virtuoso”, or to end up with too many judgments for one Justice. And Lord Hodge added that there is a tendency to encourage a single judgment of the court, “to make practitioners' task easier”.
A further question brought up the dangers of having to deal with “the politically-related [Brexit] questions to come”.
“There is undoubtedly a danger in getting dragged into political issues”, Lord Neuberger replied. “We are keen that the legislation should be as prescriptive as it can be, so that judges are not making up the law but are being told how to approach things.” Even where it is pointed out that the court has asked for guidance, or that it is open to the Government to have the law changed, there is still a danger from the press. “We can only be ready, and do our best with our communications etc.”
For Lady Hale, it is important to try and think of as many questions as possible now, and make sure Government is told at an early stage what the issues are; while for Lord Reed, the problems are not insoluble, but there will be public debate, and “the Law Society of Scotland is well placed to raise those issues and suggest ways to solve them”.
On the subject being raised of whether Scotland could learn from the “Unlocking disputes” campaign to bring arbitration wok to London, Lord Hodge suggested that Scotland should be out there marketing. Our Arbitration Act is “a major step forward”, and we should “be outward looking, and make sure that our offering is understood”. Jurisdictions such as China have more affinity to civilian systems.
Changing patterns in the types of case to come before the court also featured. Sometimes it's “like waiting for buses”, Lord Neuberger commented, an example being unjust enrichment. Although the courts below have been “inundated” with immigration and asylum appeals, that has not happened at Supreme Court level. Tax previously produced very few appeals, but there have been more lately. There are few cases on land law, and fewer commercial cases compared with 30 or 40 years ago; on the other hand child related cases feature quite a lot.
Lady Hale thought it might be that when new Justices are appointed to the court, there are more applications for permission to appeal in their perceived area of expertise.
One solicitor questioned whether the Scottish Justices actually sat to hear applications for permission to appeal. This caused some surprise to the panel, and Lord Reed recalled sitting on the panel dealing with the application for a new trial in the Sheridan defamation case. Lord Hodge and Lady Hale both pointed out that a Scottish appeal may raise questions of UK application, including statutory interpretation, Lady Hale adding that the court would probably give permission if the tests were satisfied, even if it were thought that the Court of Session had got it right. And it is open to a Justice not on the panel to speak to a panel member if they have a view about a case.