Waspish Civilities

Anyone​ who looks back today on the bitter row which erupted less than twenty years ago over the proposal to replace the House of Lords by a Supreme Court for the United Kingdom may wonder not only why anyone should have opposed the move but how it was that the upper chamber of the legislature had become the country’s final court of appeal in the first place.

At the dawn of the 21st century the UK’s system of final appeals was in most respects the same as it had been since the Middle Ages. The single structural change in those centuries had been that in 1876 the appellate function of the House of Lords had been taken away from the hereditary peerage and handed to a committee composed of legally qualified life peers appointed by the lord chancellor. Then in 2009 the House of Lords was replaced by a Supreme Court, separately housed, financed and administered, its proceedings livestreamed, its judges appointed by a non-governmental commission. To lawyers it looked very much like the end of civilisation as they had come to know it.

We know that English and Welsh appeals could be brought before either house of Parliament until, in the early 15th century, the Commons at its own request was relieved of judicial business, leaving the Lords as the only forum to which appeals could go. There are scattered records from the 16th century of appeals from the courts to the House of Lords. Scottish appeals were added in 1707 and Irish appeals in 1800. A constitutional separation of the state’s legislative and judicial powers was barely imagined until, towards the dawn of the 17th century, three successive chief justices, Popham, Fleming and Coke, established that the Crown’s prerogative powers were governed by law, and that the source of law, subject to Parliament’s enactments, was the Crown’s courts. Among them, though hardly pre-eminent since it did not issue reasoned judgments, was the House of Lords.

Nobody seemed unduly troubled by peers without any legal knowledge sitting as judges (Blackstone considered that the ‘delicacy of sentiment, so peculiar to noble birth’ was sufficient), but trouble was inevitable. In 1701, in the historic case of Ashby v. White, a writ was brought before the Queen’s Bench to nullify the election of the MP for Aylesbury because the town mayor had unlawfully kept a voter out of the polls. Chief Justice Holt’s fame among lawyers rests on his having reputedly threatened the Speaker’s retinue with committal for contempt of court if they tried to halt the proceedings. But the Speaker had a point: if the losing party could appeal to the House of Lords (which actually happened in Ashby’s case), the functioning of the elected house would be at the mercy of the hereditary house.

A classic fudge followed: in 1770 the Commons blocked the jurisdiction of the courts by passing Grenville’s Act, which provided for electoral challenges to be determined by a committee of MPs. It then set up a procedure by which an initial committee of 51 was reduced to 13 by letting each side in turn eliminate one member, usually the most able of the other party’s nominees. Not until 1868, on the eve of the great reform of the law lords, was this farce, accurately known as knocking the brains out of the committee, abandoned.

The reform of the appellate jurisdiction of the House of Lords was yet another byzantine affair, characterised mainly by accidents.* By 1870 the incompetence of the Lords as a court of law was a public scandal, but the legislation introduced by the Liberal lord chancellor Lord Hatherley with the aim of unifying the jurisdictions of the House of Lords and the Privy Council in a single Imperial Court of Appeal was sabotaged when power changed hands and a Tory Committee for Preserving the House of Lords forced Lord Selborne to settle for what we still had in the late 20th century: a salaried panel of legally qualified life peers, the law lords, presided over by a politician, the lord chancellor of the day.

By then the UK had adopted the European Convention on Human Rights as part of its domestic law, and challenges to the independence of the British judicial system were creeping closer. The bailiff of Guernsey was both chief justice of the island and president of its legislature, and in 2000 the European Court of Human Rights took a dim view of his sitting as a judge to apply legislation which he had had a hand in enacting. Sooner or later, unless the lord chancellor formally gave up his constitutional status as the head of the judiciary, the losing party in an appeal on which he had sat would take the UK to Strasbourg for failing to respect judicial independence – and would win.

Today it seems all but incomprehensible that a substantial number of ex-judges and politicians should have fought doggedly to preserve an idiosyncratic set-up which used a committee room of the legislature for want of a courtroom, which provided 11 private rooms for 12 law lords, and which produced such constitutional anomalies as the interruption of legal argument when the division bell rang (something I witnessed more than once as a barrister) so that one or more of the law lords could go and vote in the chamber.

It is against this background that Frederic Reynold’s story of what he calls high principle and low politics begins. Reynold, a veteran QC who knows many of the players, tells the story well in relation to the disputed conception of a supreme court and the travail attending its birth in 2009; less well when he comes to its juridical performance in its first decade. But anyone reading the book would be well advised to begin not at the beginning but with the appendix – the text of a public lecture delivered in May 2002 by Lord Bingham at the invitation of the Constitution Unit at University College London.

Tom Bingham at that point held the office of senior law lord. Seniority among the law lords had historically been determined solely by length of service. The most inspired achievement of Derry Irvine as Tony Blair’s lord chancellor was the creation in June 2000 of the office of senior law lord, designed to allow Bingham, a judge of unrivalled ability who at that time was toiling in the largely administrative post of lord chief justice, to move to a position that reflected his personal and intellectual standing. Irvine was keen to consolidate and enhance the appellate committee’s status as a constitutional court, but he had no wish for it to become a separate institution. In successive papers and reports on reform of the House of Lords during these years, the continued existence of a judicial appellate committee, like the presence of senior Anglican bishops as voting peers, was not seriously questioned.

Within a year of his new appointment Bingham had delivered a lecture on judicial independence for the law reform body Justice, arguing that if the UK did indeed possess an independent supreme court, it was misleading to house it in a physically and constitutionally incongruous location. A rift swiftly became evident both among politicians and the law lords themselves. It was enlarged by the intervention in March 2002 of a second powerful law lord, the South African liberal Johan Steyn, whose landmark Oxford lecture was headlined ‘The Case for a Supreme Court’. His focus was on the anomaly of having a member of the government, the lord chancellor, sitting as a judge. He could also have mentioned that former lord chancellors remained eligible to sit after leaving office (I once appeared before an appellate committee that contained two, Dilhorne and Hailsham, whose dislike of one another was unconcealed). And he pointed out that far from standing up for the judges either in public or in cabinet, Irvine, the current lord chancellor, had remained silent while the home secretary, David Blunkett, had openly attacked judges whose immigration decisions he resented.

It was a few weeks after Steyn’s lecture that Bingham delivered his paper to the UCL Constitution Unit, ‘A New Supreme Court for the United Kingdom’, with no question mark to round off its title. In a panoptic survey, he acknowledged that accidental and anomalous arrangements had on occasion turned out to work well, but contended that the appellate jurisdiction of the House of Lords was an opposite case: a recurrent disaster area which reform had not cured in spite of the appointment to it, in more recent years, of judges of high calibre. His case essentially remained that a final appeal court housed under the roof of the legislature and populated by judges who also had legislative powers, however independent it might be in practice, did not look independent.

He could well have made a wider case. Law lords not only continued to vote on law reform measures (itself a protean term) but had on at least one recent occasion been used to conduct government business. In 1996, when a Tory MP, Neil Hamilton, brought a libel claim against Mohamed al-Fayed and the Guardian for alleging that he had been taking money for asking parliamentary questions, he encountered a constitutional roadblock in article IX of the 1689 Bill of Rights, which prevented the scrutiny of parliamentary proceedings in court. To help him out of this impasse the lord chancellor, Lord Mackay, got one of the law lords to move an additional clause to a bill then going through the upper house: the clause amended the Bill of Rights to allow an MP to waive the article IX bar, a privilege of Parliament itself, for his own personal advantage. The veneer of political neutrality got the amendment through, and although Hamilton’s case went down in flames at trial, the offending provision stayed on the statute book for a number of years.

There was also the barely acknowledged problem that, in any appeal touching on the powers or processes of Parliament, the law lords, as members of the legislature, would be sitting as judges in their own cause. Nobody seems to have been troubled by this in the case brought by the Countryside Alliance on the validity of the process by which the 2004 Hunting Act had become law. But it could have caused a major roadblock in either of Gina Miller’s recent cases – the first asserting the need for any notice of withdrawal from the EU to come from Parliament itself, the second challenging the government’s purported prorogation of Parliament – if the judges of the Supreme Court had still been parliamentarians (even though the 1876 legislation exempted the law lords from the effect of prorogations).

When Irvine was asked in Parliament about the judicial critiques of the extant set-up, he stuck fast: ‘The government are of the view that a sufficient case has not been made for the abolition of the appellate committee … and its replacement by a separate new supreme court.’ Far from closing down the controversy, for Irvine this was the beginning of the end. In June 2003, in a swift and almost silent coup carried out in effect by press release, he was removed from office and his department of state transmuted into a Department for Constitutional Affairs headed by a new minister and part-time lord chancellor, Lord Falconer. Consultation on the creation of a supreme court to replace the law lords began in earnest. So did concerted parliamentary opposition and obstruction. Yet by 2009 the entire changeover, both institutional and architectural, was complete and the new court was ready to start work. By rerouting to it devolution issues from Scotland and Northern Ireland brought to the judicial committee of the Privy Council, many of them concerning human rights, the Constitutional Reform Act 2005 gave the Supreme Court a comprehensive UK-wide jurisdiction. Only Scotland’s criminal law was outside its ambit, and it remains so.

Perhaps​ the best element of Reynold’s book is his narrative of the transition from conception to delivery. With Liberal Democrat support, the Labour government was guaranteed a fair wind despite Dominic Grieve’s endeavour to block a second reading, and by the end of March 2005 the Constitutional Reform Bill had become law. Much of the credit for this goes to the resourceful Charlie Falconer, who drove the legislation past concerted endeavours to derail it, and his judicial counterpart Lord Woolf who, having been initially opposed to structural change, secured constitutional guarantees from Falconer which enabled him as lord chief justice to tender his own support and that of the Judges’ Council. The understanding – it became known as the concordat – that the new legislation would spell out the essential requirements of the rule of law became enshrined in a legislative form reminiscent of the boy scouts’ oath.

But the act contained a critical proviso: it was not to come into effect until the lord chancellor, after consulting the law lords, was satisfied that the new court would be suitably accommodated. The obvious building was the Middlesex Guildhall, appropriately facing the Houses of Parliament and in need of a suitable occupier. For its date – 1913 – it was not a bad-looking home for a court, which was what in recent times it had been: first the Middlesex Quarter Sessions and then the Middlesex Crown Court. Its bench was in those years occupied by some of the worst judges in the country, the senior one habitually delivering homilies about the politicians across the road who were preventing him from giving the prisoners before him the sentences they deserved. It was the court’s low standing and grim interior in his early days at the bar that initially put Bingham off the building.

English Heritage, whose approval was needed for listed building consent, took the view that the gothic courtrooms, with their decorated interiors, and especially the central courtroom, originally the county council chamber, were ‘unsurpassed’ for their period. This may well have been true, but it didn’t make it any easier to work out what could now be done with the building. What brought both English Heritage and Bingham round was a courtroom design that abandoned the high looming bench of both the adapted Middlesex Crown Court and Street’s law courts in the Strand, in favour of the horizontal layout which was already in use in both the Privy Council’s hearing room in Downing Street and the committee rooms which served as courtrooms in the House of Lords. Bingham’s concern to eliminate the bombast of Victorian courtroom design had to do with more than modernising and humanising the forensic setting: for advocates, especially inexperienced ones, it made a real difference to be addressing a sometimes awesome tribunal from a slightly elevated lectern instead of craning at a bench perched halfway up the wall.

It was Brenda Hale, for years the solitary female lord (sic) of appeal in ordinary, who oversaw the reimagining and conversion of the building. Looking back over the court’s first decade last December, she insisted

it always was a beautiful building, with a wealth of fine wood and stone carving, stained glass and wooden panelling, light fittings and door furniture. But the beauty had become obscured by the clutter inevitable in a building which housed seven busy crown courts, with their associated jury rooms, cells and essential offices. Some law lords had unhappy memories of their appearances here in their early days at the Bar. Some found it hard to imagine what could be done with the building.

In any event, she got the building transformed. After only a brief overrun on the contract, and equipped with the lord chancellor’s certificate of suitability, the court opened in October 2009 for business now conducted without any requirement for wigs, gowns, wing collars or clerical bands.

Reynold tracks this progress before turning to some of the cases decided by the court. This is not a task well suited to a short and broad study like this one, particularly since Reynold confines himself to the years 2017-19. Impressionistically, he detects a change from a culture of relative civility among the law lords even when they disagreed with one another to one of outspoken and occasionally sharp-tongued disagreement, especially in the high-profile cases in which a bench of seven, nine or even eleven justices has failed to reach unanimity. He describes as ‘unthinkable under the old regime’ Lord Wilson’s assertion that the interpretation of a particular word preferred by three of his colleagues was ‘misconceived’ and likely to throw its practical application into disarray. I would want more impressive evidence than this before accepting that the traditional, if occasionally waspish, civilities of judicial disagreement are being abandoned.

Reynold’s anecdotal selection of a handful of recent Supreme Court decisions isn’t particularly revealing. His conclusion that the court has not been overstepping its constitutional boundaries, while perfectly defensible, needs much fuller exposition and discussion. For a contrary position he cites Lord Brown, one of the former law lords who made the journey across Parliament Square and who dissented in the case of a young Anglo-Chilean couple denied entry by an age-based rule intended to inhibit forced marriages, which everyone accepted theirs was not. While the majority’s decision was that the research materials relied on by the Home Office failed entirely to justify the wide sweep of a rule that struck at a fundamental human right, Lord Brown considered it, in such a sensitive context, to be ‘not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases’.

It happens to be relevant that it’s Lord Brown whose lone dissent Reynold picks out (albeit by misquoting him), because he is the subject of a vignette in Final Judgment by Alan Paterson, a Scottish academic who has made a lifetime’s study of the functioning of the UK’s final court. In the House of Lords, Paterson notes, Simon Brown’s room was located next to the secretaries’ office and the judicial coffee dispenser. Gregarious by nature, he tended to work with his door open, and Paterson found that ‘any law lord who visited the secretaries or the coffee machine was likely to engage with Lord Brown in conversation.’ Bingham’s successor, Lord Phillips, confirmed this: ‘I tend to drop in on Simon Brown … and if he’s with me on a case, when I come in in the morning I shall probably just exchange views with him.’ Paterson found that between his appointment in 2004 and the move to the Supreme Court in 2009 Brown was almost always part of a majority. In the Supreme Court, where his room was simply one in a row on the upper judicial corridor, he regularly found himself in a judicial minority.

What​ of the court’s future? Like most litigants, governments do not like losing cases. In principle it’s always possible for them to reverse unwelcome judgments by legislation, but the process tends to be slow and fraught with unintended consequences. The Johnson administration has promised, or perhaps threatened, a royal commission on the constitution. But unless it casts itself adrift from reality, the commission’s options are not going to include abolishing the Supreme Court. It is more likely to explore either or both of two possibilities.

One is some form of political oversight or approval of appointments to all the senior courts. Whether this is done in private by ministerial blackballing or in public by US-style confirmation hearings, governments will then have to start living with the likelihood that the legality of their activities will sooner or later come before a bench handpicked by their enemies. Whether this will determine outcomes is another question entirely. Judicial independence is a funny thing. What were the bookies’ odds on the possibility that all eleven members of the Supreme Court would concur in holding the Johnson government’s prorogation of Parliament to be void?

The other possibility, seemingly more remote but arguably more open to abuse, is to make it easier to dismiss judges whose decisions the ruling party resents – a possibility which depends as much on fear as on actuality. In the three hundred years and more since the Act of Settlement conditionally guaranteed security of judicial tenure, no British judge has been dismissed on the required vote of both Houses for breach of the condition of ‘good behaviour’. Equally, however, good behaviour is undefined, and it isn’t certain whether its meaning is a question for the courts or for Parliament itself. It isn’t wholly fanciful to envisage an aggressive Parliament determining that a judge who has stood up to the government on an issue of legal principle has failed to behave well, and using its majority in both houses to procure the judge’s dismissal. That, as Montesquieu said of a putative loss of the separation of powers, would be the end of everything.