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Having now read the Telegraph story about possible @UKSupremeCourt reform by the government, I think that several premises/suggestions are misconceived.
Here’s a (slightly longer than I intended) thread with some thoughts
1/ https://www.telegraph.co.uk/politics/2020/11/14/britains-supreme-court-faces-overhaul-concerns-us-style-election/
Here’s a (slightly longer than I intended) thread with some thoughts
1/ https://www.telegraph.co.uk/politics/2020/11/14/britains-supreme-court-faces-overhaul-concerns-us-style-election/
2. The UKSC is not a constitutional court in the same sense as the US Supreme Court, but it does hear cases of high constitutional or public importance. So it has a(n appropriate) constitutional role.
3. Any concern about strategic litigation cannot be limited to UKSC, since so few such cases go up to two levels of appeal. The Govt being v annoyed about losing in three cases in five years - Miller, Unison, Cherry/Miller (No 2) - is not sufficient justification for reform.
4. On numbers of judges, this is also ill-judged and displays a lack of appreciation for the Court’s work. In its eleven years, the Court has generally had twelve Justices, just like the Appellate Committee of the House of Lords
5. {side point - I don’t really understand the alleged nostalgia for the House of Lords - the key things that seem to be the target here are areas where there has been continuity in terms of practice since the move to the UKSC}
6. There have been occasional gaps while selection processes were under way - hence the Court being able to sit with all eleven judges in Miller (statute requires an odd number in each case).
7. Since the reforms (by the Coalition govt) in the Crime & Courts Act 2013, the Court can have up to the full time equivalent of 12 Justices (opening the door for the possibility of part-time or job sharing)
8. The Court hears roughly 80% of its cases with a panel of five: in many weeks two different panels will sit hearing in a case (either both in the UKSC or with a JCPC case in parallel). 12 allows for the possibility of judges being unavailable (eg if they sat on the case below).
9. In important cases, the Court may sit with 7, 9 or (twice, ever) 11. There are published criteria for an enlarged panel.
10. The fact that the Court so rarely sits with more than half its members reduces the influence of any individual judge and lowers the stakes on each appointment. Contrast a Court like the US SC, which generally sits “en band”, with all judges in each case. Crucial difference.
11. The Court can already draw on the supplemental panel (of former UKSC Justices or other senior judges who have retired but not yet reached the age of 70)
12. And it can draw on other “acting judges” (under s 38 of the 2005 Act), who are senior judicial office holders from around the UK. It may be that more use of this option could add diversity or different expertise to the court in given cases.
13. But the suggestion to have “a smaller core {of judges} which would be supplemented by expert judges from around the UK” would a) not add anything useful to the current system b) concentrate “power” in fewer judges, which might not be what its proponents desire
14. c) Give rise to more concern about inconsistency from case to case, with a revolving cast of judges in what is our highest court - emphasising that decisions could change depending on which judges were
15. d) not help the court’s workload, either as a matter of the sheer volume of work, or as a matter of substantive content, where - unlike the US Supreme Court - it is the final court of appeal for the full sweep of law (bar purely criminal appeals in Scots cases).
16. I can agree it would be a bad thing if the sort of partisanship seen around US SC were to arrive here. But there’s no real evidence of that actually happening. The Court continues to decide property, tort, contract, family, labour, IP etc cases alongside constitutional ones
17. The narrative and debate around each appointment is necessarily different where US Justices are appointed for life - so can serve on the Court for decades - whereas in the UKSC (virtually all) Justices retire at 70 and would typically be appointed in their early 60s.
18. The real risk, I suggest, of politicisation of the UKSC or public perceptions of it is be blunt interventions to reform based on misplaced and supposed ideological grounds.
19. The better solution is to explain - to member of Parliament, the public and Twitter - why and how the context, remit and work of the two Courts are so different.
20. And one last footnote - there’s a snide conclusion to the article “Meanwhile, the court has been advertising for a new justice via its Instagram channel”. This is disingenuous. The court has rolled out an innovative range of activities to encourage applications.
21. The Court’s use of social media may draw appointment process to the attention of some candidates. However, as this whole debate shows, there’s a lot of work to be done on public engagement & understanding in explaining the Court’s work: that is a key value of such channels.
22. TL:DR - summary is “don’t make spurious claims to propose unnecessary reforms”
