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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges

United Kingdom

The united Kingdom high court underwent a significant change in 2005. Prior to 2005, the Appellate Committee of the House of Lords was the highest court. The lord chancellor and the prime minister selected its members, almost always from the Court of Appeal. Although the lord chancellor consulted with the judiciary and the legal profession, there were “no appointment hearings, no merit-based appointments, and no published selection criteria”[1] The Court of Appeal sat on civil and criminal appeals from English, Northern Irish, and Scottish courts (other than criminal appeals from Scottish courts).[2] In general, parties needed leave to appeal from the House of Lords, with three law lords deciding that the issue raises “a point of law of general importance”[3] Reforms in 2005 replaced the Appellate Committee of the House of Lords with the Supreme Court of the united Kingdom (uKSC).[4] The uKSC has 12 members who are nominated by the lord chancellor and confirmed by the prime minister.[5] A judicial selection commission chooses candidates for nomination.[6] The commission must include the president of the Supreme Court, a senior UK justice nominated by the president, and a member of the judicial appointments commissions of England and Wales, Scotland, and northern Ireland.[7] Both the lord chancellor and the commission are required to undertake consultations. The commission submits a selection to the lord chancellor who in effect has the power to reject one candidate, but then must submit the commission’s subsequent selection to the prime minister.[8]

The UKSC continues as the court of appeal for England, Wales, Northern Ireland, and, for the most part, Scotland.[9] It also reviews exercises of statutory power granted by the UK parliament to the legislative and executive bodies in England, Wales, Scotland, and Northern Ireland (“devolution” matters).[10] In addition, UKSC may hear direct appeals from the High Court or the Divisional Court in England or Wales or the High Court in Northern Ireland where the matter involves a point of law of general importance that is related to the construction of a statute.[11] It heard about 60 cases per year in its first three full years, which is similar to the number of cases heard in the mid-2000s by the House of Lords, but higher than the 40 to 50 cases heard per year in the 1990s.[12] The caseload has gradually increased; in the period from April 1, 2013, to March 31, 2014, it heard 120 appeals.[13]

The Supreme Court does not have complete control over its docket. From April 1, 2013, to March 31, 2014, 37 of the 120 appeals heard by the Supreme Court were as of right, that is, appeals that the Supreme Court was required to hear.[14] Appeals from decisions of the Courts of Appeal in England and Wales or Northern Ireland require permission from either the Court of Appeal or the Supreme Court (with application to the Supreme Court only where the Court of Appeal has rejected the petition). Appeals from decisions of the High Courts in England and Wales or Northern Ireland, on the other hand, require both certification by the High Court and permission of the Supreme Court. Finally, no permission is generally required to appeal from decisions of the Court of Session in Scotland, only certification by two counsel that the appeal is reasonable.[15] Leave to appeal applications are heard by a “permission to appeal” (PTA) committee of three justices with the composition determined by the staff of the Judicial Office.[16] The appeal must raise an arguable point of law of general public importance.[17]

The uKSC typically hears appeals in panels of five, seven, or nine justices, with panels of five being the most common.[18] The president of the Court can decide the panel size and composition.[19] Although the House of Lords generally decided cases with seriatim opinions, this practice has changed with the uKSC, which has tended to have more opinions entered into by a number of justices (including many where all the justices join together in a single opinion).[20]

Of all the courts, the uK Supreme Court seems most likely characterized as a deliberative court (see Figure 1-5). Few studies have found much of a connection between judicial voting and markers of personal views or ideology.[21] Arvind and Stirton argue that the courts in the uK are less likely to exhibit a liberal/conservative divide than the united States because of differences in the cases they hear.[22] The uKSC hears more private law cases than the uS Supreme Court and fewer challenges to statutes. Arvind and Stirton argue that the former cases are less likely to lead to a left/right split whereas the latter are more likely to result in such a split. Further, Hanretty has found that there was only a weak connection between the background of justices in the House of Lords between 1969 and 2009 and how they voted in cases. He argued that the differences across justices may be more reflective of their relative willingness to dissent than their willingness to vote in line with their personal views.[23] In terms of polarization (Figure 1-2), the uK House of Lords was at the low end with Canada and Australia in terms of the median range of lifetime liberal voting rates on the court between 1970 and the early 2000s, although it did have some years of a greater spread in voting rates.

In terms of cooperation, the uK had the second lowest rate of opinions with at least one dissent among the countries we examined (behind India, which has a higher caseload) when its highest court was the House of Lords (Figure 1-3).[24] Further, as can be seen from Figure 1-4, the uK House of Lords had a significantly lower fraction of dissenting opinions than the other high courts except for the Indian Supreme Court. It is too soon to say whether the uKSC will exhibit a higher or lower rate of dissent in the long term: Hanretty observed that the average unanimity rate from 2009 to 2012 was 75 percent (down from 82 percent during the preceding House of Lords period),[25] but when Lord Neuberger took over as Supreme Court president in 2012 the dissent rate dropped again.[26] Along with a high unanimity rate, there is an increasing rate of single judgment decisions although there are still a considerable number of multiple concurring opinions.[27] A norm of “professionalism” (in the form of an unwillingness to dissent) may have kept the agreement rate high in the past.[28] Although the greater number of nine- judge panels and an increase in the number of human rights case may threaten the norm of consensus, the uKSC is currently maintaining a high rate of cooperation.[29]

  • [1] Chris Hanretty, “Political Preferment in English Judicial Appointment, 1880-2005” (2012)American Political Science Association 2012 Annual Meeting Paper 1 at 2 [Hanretty, “PoliticalPreferment”].
  • [2] Hanretty, “Political Preferment,” supra note 85 at 4. Each of England and Wales, NorthernIreland, and Scotland has a court system, which for the most part the UK House of Lords andnow the UK Supreme Court sits above.
  • [3] Sangeeta Shah & Thomas M. Poole, “The Impact of the Human Rights Act on the House ofLords” (2009) LSE Law, Society and Economy Working Paper No 8/2009 [Shah & Poole]. Leaveto appeal can also be granted in some cases by lower courts.
  • [4] Constitutional Reform Act 2005 (UK), c 4 [CRA]. The Supreme Court actually came intobeing in 2009.
  • [5] CRA, supra note 88, ss 23(2), 26-29. Her Majesty may increase the number of judges uponParliamentary approval: CRA, supra note 88, ss 23(3), (4).
  • [6] Chris Hanretty, “Lumpers and Splitters on the United Kingdom Supreme Court” (2013)American Political Science Association 2013 Annual Meeting Paper, 4 [Hanretty, “Lumpersand Splitters”].
  • [7] CRA, supra note 88, schedule 8, ss. 1-3; updated requirements in The Supreme Court(Judicial Appointments) Regulations 2013, SI 2013/2193, part 3.
  • [8] CRA, supra note 88, ss 28-31.
  • [9] Hanretty, “Lumpers and Splitters,” supra note 90 at 4, the exception being certain criminalappeals from Scotland.
  • [10] These issues, and the procedure to refer questions about them to the Supreme Court, aredefined by the Government of Wales Act 2006 (UK), c 32; Scotland Act 1998 (UK), c 46; NorthernIreland Act 1998, (UK), c 47.
  • [11] Administration of Justice Act 1969 (UK), c 58, s. 12. There are also direct appeals where thematter involves a point of law of general importance that was previously considered by theCourt of Appeal or House of Lords, by whose precedent the trial judge is bound.
  • [12] Lorne Neudorf, “Intervention at the UK Supreme Court” (2013) 2:1 Cambridge Journal ofInternational and Comparative Law 16, at 25-27. The UKSC heard between 58 and 63 cases inits first three full years and the UK House of Lords heard between 56 and 74 cases between 2005and 2008. See also Shah & Poole, supra note 87 at 15. The House of Lords heard about 40-50cases per year in the later 1990s with an increase to between about 50 and 74 in 2001-2007.
  • [13] UK, HC, The Supreme Court Annual Report and Accounts 2013-2014, at 24 (June 9, 2014) [SCAnnual Report].
  • [14] SC Annual Report, supra note 97 at 26.
  • [15] One exception is that leave to appeal is required where the lower court (Court of Session)was unanimous or dismissed the claim on a preliminary point without hearing the merits.
  • [16] The Supreme Court of the United Kingdom, Practice Direction 3.1.1; Alan Paterson, FinalJudgment: The Last Law Lords and the Supreme Court (Oxford: Hart, 2013) at 67-69 [Paterson].
  • [17] The Supreme Court of the United Kingdom, Practice Direction 3.3.3.
  • [18] Hanretty, “Lumpers and Splitters,” supra note 90 at 4. Panels must consist of an unevennumber of justices (at least three), and more than half the panel must be permanent justices(CRA, supra note 88, s 42).
  • [19] CRA, supra note 88, s 42.
  • [20] Hanretty, “Lumpers and Splitters,” supra note 90 at 3-4.
  • [21] See e.g. Brice Dickson, “The Processing of Appeals in the House of Lords” (2007) 123:4Law Quarterly Review 571; Hanretty, “Lumpers and Splitters” supra note 90.
  • [22] T.T. Arvind & Lindsay Stirton, “Lawyers and the Legal Model: Judicial Ideology, JudicialProfessionalism and Institutional Strategy among the Law Lords” (2012) at 21, online: [Arvind & Stirton].
  • [23] Chris Hanretty, “The Decisions and Ideal Points of British Law Lords” (2012) 43 BritishJournal of Political Science 703 at 703-704 [Hanretty, “Ideal Points”].
  • [24] Hanretty, “Ideal Points,” supra note 107 at 706. The unanimity rate is approximately80 percent.
  • [25] Chris Hanretty, “Dissent on the uKSC, update” (August 28, 2012), Odd Bits ofQuantitative Political Science (blog), online:
  • [26] Kate Dowell, “Judicial Dissent Wanes under Neuberger Regime at uK Supreme Court,”The Lawyer (April 23. 2014), online:
  • [27] Paterson, supra note 100 at 107, 113-114.
  • [28] Arvind & Stirton, supra note 106 at 5, 35-39.
  • [29] Hanretty, “Ideal Points,” supra note 107 at 716.
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