Where will the judges sit?

Stephen Sedley

  • The House of Lords: Its Parliamentary and Judicial Roles edited by Brice Dickson and Paul Carmichael
    Hart, 258 pp, £30.00, December 1998, ISBN 1 84113 020 6
  • Constitutional Futures: A History of the Next Ten Years edited by Robert Hazell
    Oxford, 263 pp, £17.99, January 1999, ISBN 0 19 829801 3
  • The Law and Parliament edited by Dawn Olivier and Gavin Drewry
    Butterworth, 219 pp, £15.95, September 1998, ISBN 0 406 98092 6
  • Crown Powers: Subject and Citizens by Christopher Vincenzi
    Pinter, 343 pp, £47.50, April 1998, ISBN 1 85567 454 8

When, some years ago, the Bar’s dining room at the House of Lords was closed and barristers appearing before the Law Lords were given permission to use the Peers’ dining room, younger barristers became quite badly disoriented by seeing elder statesmen who they were confident had been dead for many years lunching at the next table. What they didn’t always appreciate was that it was thanks to a similar cryogenic process that the Law Lords themselves were hearing appeals – as they still are. When the Victorians set about rearranging the legal furniture, they legislated to abolish the appellate jurisdiction of the Upper House (a particular anomaly at that time, since it was only by convention that non-lawyers in the House abstained from sitting on appeals). They created a Supreme Court with a Court of Appeal at its apex for England and Wales, leaving Scotland and Ireland with their own separate systems. Limiting the majority of appeals to a one-stop process seemed a logical way of professionalising the judiciary and saving costs. The Supreme Court of Judicature Act, abolishing the Lords’ appellate jurisdiction, was accordingly passed in 1873; but before it came into force, in 1876, a further Act was pushed through, against the advice of both the Liberal reformer Lord Selborne and the Conservative reformer Lord Cairns, restoring the Lords’ nationwide appellate jurisdiction (apart from criminal appeals from Scotland) and creating the office of Lord of Appeal in Ordinary to ensure that only real judges would sit in future. That it was, in Robert Stevens’s words in the Dickson and Carmichael volume, ‘the work of a group of right-wing Tory MPs who cared nothing for law, the courts or litigants, but were anxious to prop up the hereditary principle by creating a group of judges who might balance the bishops’ is of less importance now than the fact that the Appellate Committees of the House of Lords have established themselves as one of the world’s major constitutional courts.

Two paradoxes leap out from that last sentence. How can a series of randomly composed committees be a court? And what is a constitutional court in a country which appears not to have a constitution? To take the second one first, there is less difference than one might think between a written and an unwritten constitution. The prescriptive document dates; it turns out to be far from comprehensive; its meanings and values become fogged and contested; and it becomes – you need look no further than the United States – less a guide to action than a site of disputation. Adjudication in such a system is not radically different from the process of interpreting statutes, reading them down or up to conform so far as possible to received standards of legality, and trying to make the common law respond to change without diluting principle. There’s at least a hint of this riddle in the US Supreme Court’s repeated acquiescence in the exercise of a Presidential dispensing power over legislation, which England fought a civil war to take away from its monarchs and which is not readily visible in the text of the US Constitution. The modern Law Lords, seeking to respect Parliament’s legislation but at the same time to stand up to abuses of executive power, may be thought to have done at least as much as their US counterparts to sustain constitutional principle. Written or unwritten, a constitution is only as valuable as the principles it diffuses, a process in which the courts can play an obscurantist or a pioneering role; and it is here, not in its being written or unwritten, that a constitution either functions or malfunctions.

Curiously, it is not the present Government’s sweeping programme of constitutional reform but the Pinochet case that has put the first paradox on the front pages. One Law Lord’s failure to declare a disqualifying interest led not – as at one time it might have done – to a closing of the judicial ranks but to the admission of error and the expunging and retaking of the decision. The first Judicial Committee of the House, by three to two, overset the High Court’s decision in the General’s favour largely on the basis of arguments which had not been developed below. The final Judicial Committee, now composed of seven Law Lords, reached by six to one a conclusion based on a yet further set of arguments. The outcome went from no extradition to wholesale extradition to extradition on three late charges only. It’s hard to find a sharper illustration of the elusiveness of judgment, and even harder, if you read all the speeches (Law Lords’ judgments rank as speeches in a debate), to say which sets out the most cogent view of the law. The one thing that can now be said is that the issue has been decided. But notwithstanding some agitated press comment, nothing in the episode logically calls in question the practice of sitting in committees of five (or occasionally seven) instead of as a fixed bench of nine or eleven: indeed, were the latter normal there would have been no way of assembling a fresh court. The first paradox, in other words, may be illusory. A single court of constant composition may well confer finality, and finality, as Lord Atkin said, is a good thing; but justice, as he also said, is a better. This is not an argument for further Pinochet-style reruns; merely a reminder that courts, even supreme courts, can guarantee to be fair but not to be infallible, whatever numbers they sit in.

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