Reaching the summit

Since its creation, the Supreme Court has been successful in educating the public and improving media relations. One year on it faces several challenges – not least impending budget cuts which could threaten its educative role, says Tom Cross

“New structures but an old foundation stone: the mind of Justice still at liberty” – the words of Sir Andrew Motion greet each visitor to the UK’s Supreme Court. Now one year old, those new structures have housed hearings in nearly 70 Supreme Court appeals and borne witness to countless permission decisions. Justice roams free – but was it all worth it?

The argument in favour of the new court always contained a paradox. Its creation was said to be aimed at making clearer the constitutional separation of powers between the executive, legislature and judiciary. It would enable ordinary members of the public to better understand – or simply to understand at all – that the highest court in the land performed its role independently of the law makers. But it was never seriously suggested by proponents of the Bill which later became the Constitutional Reform Act 2005 that a proper separation of powers did not actually exist, nor that any perceived lack of independence had caused rioting on the streets of London. The Supreme Court’s creation was never, in fact, an act of political necessity. It was an act of education.

It is that educative role which has consequently come most easily to the court, and which has represented its greatest success. In stark contrast to its predecessor, the Supreme Court is easy to find, easy to understand and easy to explore. Upsetting though its choice of home was to heritage conservationists, the former Middlesex Guildhall on Parliament Square, on other sides of which stand the Houses of Parliament and Westminster Abbey, will ultimately be seen as the obvious and proper location for it. Very few members of the public ever visited the committee rooms in which the law lords conducted hearings, but the Supreme Court’s accessibility has raised the headcount beyond all recognition. In its first 12 months, the Supreme Court has received over 40,000 visitors (nearly 200 per day on average). It gives guided tours for groups on request and distributes leaflets about its work. The court’s basement houses an exhibition area with interactive displays, one of which allows visitors to ‘be a justice’ and choose how they would have decided high-profile cases. It has never been easier for people to get to the court and find out about it.

The creation of the new court has also created opportunities for media engagement which were not possible at the House of Lords. A briefing is sent out to key media contacts before the start of each term, highlighting the main issues in forthcoming cases. To help the broadcast media meet their deadlines for bulletins, the court’s practice direction allows journalists to see judgments (on a confidential basis) in advance of the court’s decision formally being given. This ‘lock down’ arrangement was used in the ‘bank charges’ case (among others) with conspicuous success.

Perhaps most significantly, all the court’s proceedings are filmed and made available to broadcasters and educational establishments on request. They are also transmitted to two screens in the exhibition area for those members of the public who wish to watch what is happening without having to go into a court room. On at least two occasions this year, a plasma screen has been set up in an empty court room to allow members of the public who have not been able to get a seat in court to follow proceedings nonetheless. It is right that they should be able to do so.

In the development of a consistently applied approach to the form in which judgments are produced, the court still has work to do. Lord Phillips’ early public indication that the court might increasingly produce single majority judgments has not come to pass, but nor, unsurprisingly, has each justice produced a reasoned judgment in every case. There has evolved a process whereby a justice will write if they feel they should, whether or not their reasoning materially differs from a colleague. Such a system means that no justice feels inhibited when writing in the general case, but may mean, in some cases, that it is not always be clear for what reason(s) one justice agrees with another.

The court is also yet to fully iron out its system for deciding how many judges should sit on appeals. It was, of course, only in exceptional circumstances that more than five law lords sat to hear an appeal in the House of Lords. They might have done so, for instance, if being asked to depart from a previous ruling of the House or Privy Council, or if the point of law involved was of real constitutional, as opposed to just general, importance. In the Supreme Court, the justices have shown greater willing to sit as more than five even where exceptional circumstances such as these have not appeared to be applicable. R (on the application of Sainsbury’s Supermarket’s Ltd) v Wolverhampton City Council, in which seven justices sat, and Norris v Government of the USA, in which nine took part, are good examples.

The argument most often advanced in favour of larger appeal panels is the greater legitimacy which it is said the resulting decision bears; if a majority – seven or more –participates in a case, it can more persuasively be described as a judgment of ‘the court’. But it does not follow that larger panels will produce a result, and still less reasoning to which a majority of ‘the court’ subscribes. Even a panel of nine might produce a 5/4 split, leading to speculation as to whether justice X, Y or Z, who did not sit, might have made the critical difference. The only complete answer to such speculation would be for the court to sit en banc, as  it does in America, but while there remains a statutory obligation for the court to comprise 12 members (an even number), that cannot, and will not, occur.

Beyond judicial decision making, other challenges lie ahead. While media relations are much improved, the court is yet to hit upon the most effective way of communicating with journalists, especially those without legal experience or qualification. The press summaries, which are produced by the judicial assistants shortly before the handing down of each case, and which are made available on the court’s website immediately after, have proved more accessible to lawyers than non-lawyers. That is most likely because of the difficulty which trained lawyers find in producing a summary of a case which seeks to avoid legal jargon but is nevertheless legally accurate. A better balance might be struck in future.

The most significant challenge currently faced by the court now lies, however, beyond its control. All government departments have been asked to consider the effect of spending cuts of between 25 and 40%. As Jenny Rowe, the court’s chief executive, explained in a recent press conference, cuts at the upper end of that range would be so severe that they could actually force the court to close for casework altogether. Even assuming that such an apocalyptic scenario does not eventuate, the threatened cuts may still not be able to be sustained by the court without serious prejudice to the quality of the service it gives to the public. Asked about which parts of the court’s budget might be liable to be cut, Rowe refused to be drawn into a “public negotiation”. But she did say that since casework was the court’s priority, the court’s public education and outreach programmes might be vulnerable.

So, the court’s ability to achieve the very purpose for which it was born – to educate the public on what it does – is now directly, and ironically, under threat. This may come to overshadow the formidable success which the court has already achieved, and provides the reason why all those with a stake in the successful development of the Supreme Court should seek to resist cuts of such size. The Supreme Court is here to stay as the apex of this country’s legal system, and the lawyers in that system should promote its cause.

Tom Cross was a judicial assistant to the Supreme Court throughout its first year. He has now returned to the Bar, specialising in Administrative, Public and Human Rights law at Francis Taylor Building(www.ftb.eu.com).