Materialising the UK Supreme Court

Chris Hanretty, A Court of Specialists: Judicial Behavior on the UK Supreme Court, New York: Oxford University Press, 2020, 304 pp, hb £64.00

The outgoing tide of EU law will be Britain’s most significant constitutional change in recent times. In an era of uncertainties, the UK Supreme Court proved to be a guardian of the constitutional role of Parliament. The case of Miller, decided in the UK Supreme Court in 2017, proved that point. The highest court in the UK has therefore gained an important place in the global community of Constitutional Courts. This global community finds its legitimacy in the recognition of common values as well as the recognition of national variations. This article analyses to which extent common values, and in particular those found in German law, have influenced decisions in the House of Lords and UK Supreme Court. To do so, the author analyses decisions by the House of Lords and the Supreme Court and extrajudicial speeches by the Justices of the Supreme Court for references to German constitutional law. It identifies and maps the themes that have attracted the attention of the justices of the Supreme Court. More recently, the UK Supreme Court has referred to judgments and extrajudicial writing by German Constitutional Court judges. This was in the context of constitutional questions relating to the tension between membership within the EU and national identity, a theme which has occupied German judges for some time. As well as that, the interpretation of the European Convention on Human Rights has sparked an interest in German jurisprudence, in particular in the principle of proportionality.

This article examines the role of interveners before the UK Supreme Court. Interveners are persons who, while neither appellant nor respondent, participate in the litigation process and make submissions to the court in much the same way that either of those parties would. Interveners assist judicial decision-making by providing supplemental information that gives a broader economic and social context to the legal issues in dispute. Through a comparative study of the experience of intervention at the supreme courts of theUnited States andCanada, this article seeks to provide insights as to how the practice of intervention might develop at the UK SupremeCourt in the years to come. It also identifies a number of issues to lay a foundation for further scholarly study in the field. In the first section, intervention is placed in a comparative context by looking to the supreme courts of the United States and Canada. The second section provides an overview of the purpose and procedure of intervention at the UK Supreme Court. In the third section, a numerical analysis of intervention at the UK Supreme Court since it began hearing cases in 2009 (with reference to the House of Lords since 2005) identifies trends that may suggest future developments. The conclusion sets out that intervention before the UK Supreme Court offers a number of benefits if the process is carefully regulated.

Many institutions in a democratic society wield important power by virtue of the decisions they make. These decisions may concern individuals or have a more general impact on society. It goes without saying today that this exercise of power be accounted for. supreme court's reasoning is given in its judgements. central bank's reasoning is given in the decision-making body's minutes. In this paper, we develop criteria for what constitute good written justifications for a decision, not what makes a good decision per se. We look at the two institutions we know best: supreme courts and central banks. Of course, these are not the only institutions that exercise power on behalf of the state, and we also ask whether our criteria could be applied more generally. We assess a selection of supreme court judgements and monetary policy decisions in various countries qualitatively against our criteria, and find that practice largely conforms to the criteria. There are some common features between supreme courts and central banks. In recent years there has been a development in the way the judgments are written in the UK Supreme Court. Earlier, each judge wrote his votum. Now they are writing a common text. With individual writing, there were many different formulations of the normative text. It is easier for the public to relate to one legislative text. The UK Supreme Court, under the presidency of Lord Neuberger, has therefore gradually moved towards writing a joint text. John Roberts, the US Chief Justice, thought that judges should be worried when they are writing separately about the effect on the court as an institution. What about the minutes of the central banks? Professor Alan Blinder at Princeton argues that a central bank that speaks with a cacophony of voices has no voice at all. Professor Otmar Issing, the former Chief Economist and Member of the Board of the ECB, believes that there is a danger that individual minutes provide an incentive for individual members to put themselves ahead of the institution We also test empirically whether the institutions' decisions and the justifications for these decisions are communicated in clear language. Our analysis is inspired by Bank of England chief economist Andrew Haldane's speech A little more conversation, a little less action, and by the report Bankspeak: The Language of World Bank Reports 1946-2012 by Franco Moretti and Dominique Pestre at Stanford Literary Lab. We analyse more than 6,000 central bank and supreme court decisions from the past decade and find considerable differences in length and readability across countries and institutions. The grand chamber decisions of the European Court of Human Rights are by far the longest, while the European Court of Justice employs the most complex language. The Danish central bank keeps things briefest and uses the clearest language, but also has the simplest regime to explain. The Swedish central bank's minutes stand out as both long and complex, while the Norwegian central bank is unusually concise. Moretti and Pestre analysed the text of all World Bank reports and found quantitative indications that the language of the reports had moved in the wrong direction in terms of readability. We perform the same tests on central banks and supreme courts and find that these institutions' language has not moved in the same negative direction. Former Bank of England governor Mervyn King argued that the design of an institution must reflect history and experience, and there is no doubt that each institution's way of writing is influenced by its own history. This is what economists refer to as dependence. We wonder, however, whether there is rather too much path dependence in many cases, and whether the institutions in question might benefit from looking at trends and learning from other institutions both at home and abroad. In our work on this paper, we have been particularly wary of phrases along the lines of based on a general assessment. Alarm bells sound whenever we see them, especially with any frequency, as they are liable to conceal rather than illuminate the true rationale.

Many institutions in a democratic society wield important power by virtue of the decisions they make. These decisions may concern individuals or have a more general impact on society. It goes without saying today that this exercise of power must be accounted for. A supreme court’s reasoning is given in its judgements. A central bank’s reasoning is given in the decision-making body’s minutes. In this paper, we develop criteria for what constitute good written justifications for a decision, not what makes a good decision per se. We look at the two institutions we know best: supreme courts and central banks. Of course, these are not the only institutions that exercise power on behalf of the state, and we also ask whether our criteria could be applied more generally. We assess a selection of supreme court judgements and monetary policy decisions in various countries qualitatively against our criteria, and find that practice largely conforms to the criteria. There are some common features between supreme courts and central banks. In recent years there has been a development in the way the judgments are written in the UK Supreme Court. Earlier, each judge wrote his votum. Now they are writing a common text. With individual writing, there were many different formulations of the normative text. It is easier for the public to relate to one legislative text. The UK Supreme Court, under the presidency of Lord Neuberger, has therefore gradually moved towards writing a joint text. John Roberts, the US Chief Justice, thought that judges should be worried when they are writing separately about the effect on the court as an institution. What about the minutes of the central banks? Professor Alan Blinder at Princeton argues that a central bank that speaks with a cacophony of voices has no voice at all. Professor Otmar Issing, the former Chief Economist and Member of the Board of the ECB, believes that there is a danger that individual minutes provide an incentive for individual members to put themselves ahead of the institution. We also test empirically whether the institutions’ decisions and the justifications for these decisions are communicated in clear language. Our analysis is inspired by Bank of England chief economist Andrew Haldane’s speech “A little more conversation, a little less action”, and by the report “Bankspeak: The Language of World Bank Reports 1946-2012” by Franco Moretti and Dominique Pestre at Stanford Literary Lab. We analyse more than 6,000 central bank and supreme court decisions from the past decade and find considerable differences in length and readability across countries and institutions. The grand chamber decisions of the European Court of Human Rights are by far the longest, while the European Court of Justice employs the most complex language. The Danish central bank keeps things briefest and uses the clearest language, but also has the simplest regime to explain. The Swedish central bank’s minutes stand out as both long and complex, while the Norwegian central bank is unusually concise. Moretti and Pestre analysed the text of all World Bank reports and found quantitative indications that the language of the reports had moved in the wrong direction in terms of readability. We perform the same tests on central banks and supreme courts and find that these institutions’ language has not moved in the same negative direction. Former Bank of England governor Mervyn King argued that the design of an institution “must reflect history and experience”, and there is no doubt that each institution’s way of writing is influenced by its own history. This is what economists refer to as “path dependence”. We wonder, however, whether there is rather too much path dependence in many cases, and whether the institutions in question might benefit from looking at trends and learning from other institutions both at home and abroad. In our work on this paper, we have been particularly wary of phrases along the lines of “based on a general assessment”. Alarm bells sound whenever we see them, especially with any frequency, as they are liable to conceal rather than illuminate the true rationale.

This chapter discusses the interactions between the role of the United Kingdom (UK) Supreme Court today and the judicial selection process for appointment to the UK Supreme Court. The UK Supreme Court has the exact jurisdiction that the judicial House of Lords had. It is not a distinct court dealing with matters as such, unlike, for example, the French Constitutional Council. The composition of the UK Supreme Court is a legitimate focus for consideration, not least because, in the context of human rights at least, it bears relevance to the way in which its judges reach their decisions. For the time being, appointment to the UK Supreme Court does not greatly differ from appointments to the English bench. The chapter concludes that, while the UK Supreme Court is not a separate Constitutional Court and retains some appellate jurisdiction, it certainly engages in constitutional adjudication. Keywords: adjudication; human rights; judicial selection process; United Kingdom (UK) Supreme Court,

This chapter provides an analysis of the case law of the Supreme Court of the United Kingdom regarding constitutional guarantees of equality. It will mostly focus on the equality guarantee of the Human Rights Act, which mirrors Article 14 ECHR. The analysis of the chapter proceeds in three steps. First, it analyzes the equality doctrine developed by the UK Supreme Court (and its predecessor, the House of Lords). Second, it will present the results of the empirical analysis. It will demonstrate that the UK Supreme Court mostly adheres to the equality as non-discrimination model even though it applies a somewhat deferential approach. Third, it examines possible explanations for the Supreme Court’s equality approach. The shape of the equality doctrine developed by the UK Supreme Court can mostly be explained by the influence of the European Court of Human Rights.

The goal of this paper is to conduct a comparative discussion of the issue of the appellate standard of review in public law cases. On this issue, two common law apex courts have recently divided: the United Kingdom Supreme Court taking one view, the High Court of Australia a very different view. In England and Wales, the Supreme Court has limited the role appellate courts can play in assessing the proportionality of administrative decisions, thereby placing a significant degree of authority in the hands of first-instance courts. By contrast, the High Court of Australia has insisted that the question of whether an administrative decision-maker acted lawfully is one of law, even where the answer to legal question at issue depends (as is often the case in contemporary public law matters) on an appreciation of contextual factors; accordingly, an appellate court can substitute its judgment for that of a first-instance court if it disagrees with the first-instance court’s conclusion. In this paper, I will begin by laying out the competing approaches taken by the UK Supreme Court and the High Court of Australia. I will then discuss the divergence between these two common law apex courts. Three issues are relevant in explaining the divergence between these two apex courts: whether clear lines of demarcation can be maintained between questions of “law” on the one hand and questions of “discretion” on the other; whether the goal of proportionate dispute resolution should influence the rules relating to appellate standard of review; and, finally whether a legal system’s culture is relatively legalistic or relatively contextual. In summary, in England and Wales, judicial and academic scepticism of the distinction between “law” and “discretion” (consistent with a general preference for contextual rather than legalistic approaches to legal issues) has allowed proportionate dispute resolution to exercise significant influence over the appellate standard of review. This was previously the case in private law and has now come to be the case in public law too. In Australia, however, judicial adherence to the “law”/“discretion” distinction (consistent with the legalistic approach celebrated by many Australian jurists) means that proportionate dispute resolution is less prominent in determining the appellate standard of review. After my analysis of the reasons for the divergence between the UK Supreme Court and the High Court of Australia, I will also discuss the approach taken by the Supreme Court of Canada. Although the Canadian approach to the appellate standard of review is the same as the Australian, the current approach has been criticised. Moreover, the orientation of the Canadian legal system on the three issues which explain differing approaches to the appellate standard of review more resembles the English than the Australian. Accordingly, this is an area of Canadian law which seems ripe for judicial reform. Having discussed the divergent approaches in Australia and in England and Wales, analysed the reasons for the divergence and noted the Canadian position, I conclude with a critical assessment of the English position. While the new approach of the UK Supreme Court is unsurprising, as a descriptive matter, it remains to consider whether it is defensible in normative terms. On this, I am sceptical. There are, I suggest, good arguments for the Australian position in public law cases.

Do lower court judges influence the content of Supreme Court opinions in the United Kingdom? Leveraging original data, we analyze opinion language adoption practices of the UK Supreme Court. We advance a theory where the justices’ choices to adopt language from lower court opinions are influenced by Supreme Court-level attributes and Court of Appeal case characteristics. We uncover compelling evidence that UK Supreme Court justices incorporate language extensively from the written opinions of the Court of Appeal of England and Wales. Our findings have significant implications for opinion formulation, doctrinal development, and higher and lower court interactions within comparative courts.

Accordingly, this article aims at briefly discussing a highly complex, controversial issue in international taxation: the resort to domestic law in the interpretation of tax treaties. For this purpose, this article elects as object of analysis the Fowler Case, recently judged by the Supreme Court of the United Kingdom. The issue at dispute in the case is whether Mr. Fowler’s income should fall within article 7 (business profits) or article 14 (employment income) of the double taxation convention between the UK and South Africa (“UK-South Africa DTC”). Since Prof. Rainer Prokisch has very much contributed not only to the study of tax treaty interpretation but also specifically to that of employment income taxation as the responsible for article 15 of the OECD Model in Vogel’s Commentaries, the discussion of the Fowler Case somewhat celebrates the particular importance of Prof. Rainer Prokisch to these two research fields. Without intending to “solve” the Fowler Case in place of the UK Supreme Court, this article intends to sustain the primacy of the autonomous interpretation of treaty concepts, showing that the UK Supreme Court did not take this approach when ruling the Fowler Case. First, this article (1) presents the Fowler Case along very general lines. It focuses on the decision of the case by the UK Supreme Court. Lower courts decisions on the case are not considered. Second, this paper (2) articulates the authors’ fundamental position regarding the interpretation of tax treaties. Lastly, this article (3) criticizes the interpretative approach undertaken by the UK Supreme Court in view of the authors’ position.

The civil justice system in England and Wales is hierarchical in terms of both its first instance jurisdiction and its appellate jurisdiction. Appeals lie from first instance decisions to either the next judicial tier within a court or to a superior court. Second appeals cannot but be brought in the Court of Appeal. The House of Lords, which exercised judicial appellate jurisdiction from the middle ages, and its statutory successor the UK Supreme Court, only hear appeals from inferior territorial appellate courts within the United Kingdom. This hierarchical structure has, historically, ensured that neither the House of Lords nor the UK Supreme Court have suffered from a surfeit of appeals. Furthermore, the fact that appeals to the House of Lords and the UK Supreme Court (a) are limited to appeals on questions of law, and only those which raise issues of general public importance, and (b) are only permitted if permission to appeal is granted has ensured that the number of appeals they hear has remained relatively static historically. By way of contrast, the appellate jurisdiction of the Court of Appeal in England and Wales has undergone periods of severe increases in its caseload; it recently underwent such an increase, and reforms were introduced to reduce its burgeoning caseload. This increase came despite appeals to the Court of Appeal being subject to a permission to appeal requirement, albeit one that is not as restrictive as that to the UK Supreme Court. This contribution describes those issues, and particularly the reforms introduced in October 2016 aimed at reducing the Court of Appeal’s workload.KeywordsSupreme CourtCourt of appealPermission to appeal requirements

In General Dynamics v. Libya, the UK Supreme Court was asked to decide whether the only means for serving on a sovereign state an order enforcing an international arbitral award under the New York Convention was via diplomatic channels. The Supreme Court decided, by a bare majority, that service via diplomatic channels was mandatory. This case note reviews and analyses the Supreme Court’s decision. State Immunity, Service, Proceedings, Sovereign State, Enforcement Order, Hard Cases, UK Supreme Court

Mark Garnett compares and contrasts the new UK Supreme Court with its older, more illustrious American counterpart. Since 2009, Britain, like the US, has had a Supreme Court as its highest judicial body. Mark Garnett compares the two institutions, and finds that while the US Supreme Court is a much more powerful body, the UK incarnation could have considerable significance in the future.

This chapter examines the engagement of the Irish Supreme Court with the European Convention on Human Rights. It reviews all of the occasions on which decisions of the Supreme Court have been reviewed by the European Commission or Court of Human Rights, cases such as Lawless, Norris, Open Door, Keegan, Heaney, Murphy, Independent News, Bosphorus Airways, McFarlane and O’Keeffe. The argument is made that, like the UK Supreme Court, Ireland’s top court has not been as committed to adopting the ECHR’s standards as it might have been and that the Court is still not adapting its own judgment-writing to take proper account of the jurisprudence of the European Court of Human Rights. That Court has frequently highlighted the inordinate delays which plagued the Irish Supreme Court in the 1990s. More could be done to integrate the European Court’s thinking into the way the Supreme Court goes about developing Ireland’s human rights law.

Lord Rodger promoted the institution of the judicial assistants in the Supreme Court and encouraged new lawyers to apply for the job after completing their professional legal training. Lord Rodger felt that the young lawyers who spent a year as judicial assistants with the Supreme Court were an invaluable addition to the court. He also took delight in seeing the progress his charges made over the course of the year in the Supreme Court and beyond. This chapter describes the daily duties of the judicial assistants in the Supreme Court; and, thereby attempts to continue Lord Rodger's work in encouraging new generations of lawyers to consider working for the highest court in the UK.