Final Judgment : The Last Law Lords and the Supreme Court

The House of Lords, for over 300 years the UK’s highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivalled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including more than 40 with Law Lords and Justices, and uniquely, some of their judicial notebooks, this is a landmark study of appellate judging ‘from the inside’ by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years. The book demonstrates that appellate decision-making in the UK’s final court remains a social and collective process, primarily because of the dialogues which take place between the judges and the key groups with which they interact when reaching their decisions. As the book shows, the forms of dialogue are now more varied, yet the most significant dialogues continue to be with their fellow Law Lords and Justices, and with counsel. To these, new dialogues have been added, namely those with foreign courts (especially Strasbourg) and with judicial assistants, which have subtly altered the tenor and import of their other dialogues. The research reveals that, unlike the English Court of Appeal, the House of Lords in its last decade was only intermittently collegial since Lord Bingham’s philosophy of appellate judging left opinion writing, concurrences and dissents largely to individual preference. In the Supreme Court, however, there has been a marked shift to team working and collective decision-making bringing with it challenges and occasional tensions not seen in the final years of the House of Lords. The work shows that effectiveness in group-decision making in the final court turns in part on the stages when dialogues occur, in part on the geography of the court and in part on the task leadership and social leadership skills of the judges involved in particular cases. The passing of the Human Rights Act and the expansion in judicial review over the last 30 years have dramatically altered the two remaining dialogues – those with Parliament and with the Executive. With the former, the dialogue has grown more distant, with the latter, more problematic, than was the case 40 years ago. The last chapter rehearses where the changing dialogues have left the UK’s final court. Ironically, despite the oft applauded commitment of the new Court to public visibility, the book concludes that even greater transparency in the dialogue with the public may be required. ‘The way appellate judges at the highest level behave to each other, to counsel, with other branches of government and with other courts is brought under closer scrutiny in this book than ever before...The remarkable width and depth of his examination...has resulted in a work of real scholarship, which all those who are interested in how appellate courts work all over the common law world will find especially valuable.’ From the foreword by Lord Hope of Craighead KT ‘Alan Paterson’s knowledge and interest in the Supreme Court, coupled with his expertise as a lawyer who understands the legal system and the judicial process, make him a perfect chronicler and assessor of what the Court’s role is and what it should be, and how it functions and how it might improve.‘ Lord Neuberger, President of the Supreme Court Winner of the Inner Temple book prize 2015 and the Socio-Legal Studies Association Book prize 2014/15The House of Lords, for over 300 years the UK's highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivalled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including more than 40 with Law Lords and Justices, and uniquely, some of their judicial notebooks, this is a landmark study of appellate judging'from the inside'by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years. The book demonstrates that appellate decision-making in the UK's final court remains a social and collective process, primarily because of the dialogues which take place between the judges and the key groups with which they interact when reaching their decisions. As the book shows, the forms of dialogue are now more varied, yet the most significant dialogues continue to be with their fellow Law Lords and Justices, and with counsel. To these, new dialogues have been added, namely those with foreign courts (especially Strasbourg) and with judicial assistants, which have subtly altered the tenor and import of their other dialogues. The research reveals that, unlike the English Court of Appeal, the House of Lords in its last decade was only intermittently collegial since Lord Bingham's philosophy of appellate judging left opinion writing, concurrences and dissents largely to individual preference. In the Supreme Court, however, there has been a marked shift to team working and collective decision-making bringing with it challenges and occasional tensions not seen in the final years of the House of Lords. The work shows that effectiveness in group-decision making in the final court turns in part on the stages when dialogues occur, in part on the geography of the court and in part on the task leadership and social leadership skills of the judges involved in particular cases. The passing of the Human Rights Act and the expansion in judicial review over the last 30 years have dramatically altered the two remaining dialogues - those with Parliament and with the Executive. With the former, the dialogue has grown more distant, with the latter, more problematic, than was the case 40 years ago. The last chapter rehearses where the changing dialogues have left the UK's final court. Ironically, despite the oft applauded commitment of the new Court to public visibility, the book concludes that even greater transparency in the dialogue with the public may be required.'The way appellate judges at the highest level behave to each other, to counsel, with other branches of government and with other courts is brought under closer scrutiny in this book than ever before...The remarkable width and depth of his examination...has resulted in a work of real scholarship, which all those who are interested in how appellate courts work all over the common law world will find especially valuable.'From the foreword by Lord Hope of Craighead KT'Alan Paterson's knowledge and interest in the Supreme Court, coupled with his expertise as a lawyer who understands the legal system and the judicial process, make him a perfect chronicler and assessor of what the Court's role is and what it should be, and how it functions and how it might improve.'Lord Neuberger, President of the Supreme Court The House of Lords, for over 300 years the UK's highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivaled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including a total of 36 Law Lords, this is a landmark study of appellate judging 'from the inside,' written by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years. With insights from social psychology and strategic theory and collegiality, the book demonstrates that appellate decision-making in the House of Lords - always a social and collective process turning on a number of dialogues between justices and counsel - remains dialogue-based, but is now more varied, being face to face, oral, written, symbolic, contemporary, asynchronic, and virtual. The range of dialogues is also more extensive than in the past, including with dialogue foreign courts (especially Strasbourg) and with Judicial Assistants, thus subtly altering the tenor of other dialogues. The interface with counsel remains central to the decision-making process, but written arguments have doubled in size while oral ones have been halved in duration. This has had unexpected knock-on effects on the dialogue between the Law Lords themselves, which has also moved from one that was predominantly oral 40 years ago to one that was much more in writing by 2009. In terms of collegial decision-making, the research reveals that, unlike the English Court of Appeal, the House of Lords in the last decade was only intermittently collegial. On a number of fronts, the preferences of the senior Law Lord ensured that opinion writing, concurrences, and dissents were largely left to individual preference rather than collectively negotiated. The book also examines the techniques for consensus building and influencing judicial colleagues used in the House, which enabled certain Law Lords in a significant number of close decisions to bring about a change in the majority decision of the court. The expansion in judicial review over the last 30 years has given rise to another final dialogue with Parliament, leading to a constitutional struggle between the highest court and the other branches of government which masks an accountability problem recently exacerbated by the doctrine of separation of powers. The book examines mechanisms for handling this democratic deficit, including reform to the selection procedure for Supreme Court Justices and greater transparency in decision-making. The concluding chapter explores the changed dialogues that have come with the advent of the Supreme Court and the attempts in the new Supreme Court to introduce a more collegial decision-making style. Introduction, context and methodology The dialogue with counsel Dialogues with colleagues : the stages for discourse Dialogues with colleagues : efficacy in judicial dialogues Inter-judicial dialogues in practice Wider dialogues old and new The dialogue with other branches of government Final reflections.