It was initially questioned whether the UK Supreme Court, which was eventually established under Part 3 of the Constitutional Reform Act 2005 and opened on 1 October 2009, would mark any significant departure from the Appellate Committee of the House of Lords. Initially, it appeared not. Most of the same personnel transferred to the Supreme Court. Lord Neuberger stepped down to take up the post of Master of the Rolls and the now late Lord Bingham retired. Aside from that, the same Lords and one Lady moved over to the newly converted Middlesex Hall on Parliament Square. With them, they took their titles. On the surface, it very much appeared to be a case of moving the old to a new context, however scratch below the surface and there is evidence of some remarkable differences.
1) The First Major Change; Openness of the Court
1.1 A More Open Court
It is immediately clear that the court is more open and accessible to the public, both physically and virtually. One can now visit the Supreme Court, which is conveniently located opposite the Houses of Parliament on Parliament Square. There, after passing through security, the receptionist will greet you, let you know which appeals are being heard in each of the Courtrooms and hand you a leaflet, which sets out information about the Court and the Justices. Inside there is information as to who each of the Justices are and pictures of them so as to make it easier for visitors to recognise each of them on the judicial panel. The openness of the new court seems far removed from the Law Lords, who were packed into a Committee room which was out of sight of the public in the Houses of Parliament. The Justices are now much more visible to those who operate outside of the legal sphere.
1.2 Televised Hearings
In a further bid to promote openness and accessibility, a novel change in the new Court has been the fact that each of the Supreme Court cases is now filmed. The option is therefore available for a broadcaster to follow a whole case should they so desire. To date no broadcaster has chosen to do so, which Baroness Hale in a recent interview puts down to the structure of our cases. She states, ‘The style of case presentation and/or argument in this country involves large amounts of reading out to the Justices, which can’t be tremendously interesting to members of the public.’ It seems therefore, that for this change in practice to be of any real value, in that it enables cases to reach new audiences, there would have to be a deeper change in the procedures surrounding oral testimony in the UK appellate courts.
1.3 A new website
The Supreme Court has its own website, which lists each of the decided cases, upcoming appeals and contains general information about the Court itself, such as biographies of the Justices, contact details and even conference facility hiring details. Previously, the House of Lords web pages were difficult to locate and the decisions did not appear to be in any particular order other than being categorised by the year of the decision. Akin to the physical move from the committee rooms of the Houses of Parliament to a separate building, the virtual move from the Houses of Parliament website, to having a separate Supreme Court website has achieved much to make matters clearer, easier to locate and more stylishly presented.
2) The Second Major Change; The Organisation of the Court
2.1 Larger Panels
In the committee rooms of the Appellate Committee of the House of Lords, it was difficult for the Law Lords to convene a bench of more than 5 in number, due to the cramped conditions. By way of contrast, Court Number One in the new Supreme Court building has been specifically designed so that up to 9 justices can be accommodated with ease. This bares itself out in the statistics. In the final two years of the House of Lords, the Lords of Appeal in Ordinary only sat in a panel of more than 5 twice. In contrast to that, in the first year of the UK Supreme Court alone, the Court has convened a bench of 7 Justices on 9 occasions and a bench of 9 Justices on 3 occasions.
There is the potential for both positive and negative effects to manifest from this new procedural arrangement. On the positive front, it affords the Court the chance to have greater legitimacy as it closes the door to an attack based on its panel selection procedure. Litigants and Counsel can also feel less aggrieved with the final decision, safe in the knowledge that it was carried by at least a 4 or 5 justice majority. On the negative side, it makes close cases even more pronounced, as the potential for a 5/4 split in the Court is increased. This could result in the losing party perhaps being more aggrieved at the narrow margin by which the decision was carried. There is also the possibility that cases could take longer, as a greater number of judges each have the potential to interrupt proceedings for further clarification on matters. The time required for the post-trial process of considering each other’s opinion, writing, re-writing and circulating final opinions will presumably also be much greater with 9 Justices, and may impact on the overall efficiency of the Court. Whether these positive or negative effects begin to emerge will become apparent over time.
2.2 Press Summaries
One notable change in the publication of written judgments is that a Press Summary is now provided and posted on the website. This is on average one A4 page, which summarises the main issues in the case, what was decided and which judges were in the majority and which dissented. Not only does this make it easier for members of the public and legal scholars to access the judgment and quickly get to grips with the main issues, it also makes it easier for the Press to report on decided cases and as a consequence makes the overall dissemination of the decisions of the Supreme Court into the public domain easier to achieve. Whether this in reality makes dissemination more wide spread will be entirely dependent on the media’s coverage of Supreme Court cases over the next few years.
3 The Third Change; Name and Status of the Court
Lastly, the title ‘Supreme Court’ immediately gives the new court a sense of importance and purpose. However at the same time, some may regard it as confusing in that it does not accurately reflect the true powers of the Court. Nearly every member of the public will have heard of the US Supreme Court and most will be familiar with its powers to strike down legislation. It has been voiced on more than one occasion that there could be the potential to get the two (i.e. UK and US Supreme Courts) confused in terms of their powers and capabilities. The word ‘Supreme’ seems to indicate that the judges sit in a position which is supreme to that of Parliament. However, that is not in fact the case, as the court’s constitutional status and powers have remained exactly the same as before. Lord Bingham highlights these semantic issues in his lecture A Supreme Court for the United Kingdom. Lord Hope also explains in his Gray’s Inn Reading The creation of the Supreme Court was it worth it?, that the reason the title ‘Supreme Court’ was picked was for want of a better name. It certainly was not meant to become the ‘supreme’ branch of state in the United Kingdom.
Nevertheless, Lord Phillips, President of the Supreme Court, has indicated that the Justices may well live up to the title of the Court, and challenge Parliament in the future. However, he immediately qualifies this statement by saying that it would take a constitutional crisis for such a matter to come to the fore. He comments in a BBC Radio 4 Programme Supreme Court is a formidable player.
If Parliament did the inconceivable we might do the inconceivable as well. One is envisaging the situation where a strong majority in Parliament enacted a piece of legislation that produced a complete public outcry because it was opposed to some fundamental constitutional principle. Then one might say that the Supreme Court might react, but if you reach that situation you would be in a constitutional crisis and we’re nowhere near that kind of situation.
Overall, it has been a busy formative year for the fledgling court, and with the threat of cuts to its budget going forward (for more information on this see Joshua Rozenburg’s article in a recent edition of the Law Society Gazette) it could prove to be a turbulent second year in the life of the UK Supreme Court.