Supreme craftsmanship

Lord Hope is sitting at his desk, his back to the bay window, in what seems, after the brightness of the public areas at the Supreme Court, like semi-darkness. The only source of light is the faint late afternoon autumn sun streaming through from Parliament Square. The atmosphere is one of quiet, reflective poise. To one side of the room, beyond the book-lined back wall, is a small sitting area with a few armchairs. On the coffee table, there is a book on Pugin. It is an apposite parable for the comments the deputy president is about to make on the art of crafting judgments.

'It's like trying to develop a piece of artwork, or a painting: you have an idea of what it should look like and you can then adjust it in a way which becomes quite creative,' he says.

'People's styles are different,' he continues. 'Some are very methodical, others like to be free-thinking. Some judgments are a delight to read, as they start off with some wonderful scene-painting at the beginning and then some fine phrases come in and you're immediately attracted to read further. They may not be very precisely structured, but they're enjoyable to read and full of very useful material.'

To many of those familiar with some of the law lords' more romantic speeches, this might not sound too unusual. But by crossing the road and becoming justices of the Supreme Court, the judges of the highest court in the land have broken away from the traditions that bound them in the House of Lords and they have acquired a new life. Not one, as feared in some quarters, where they can wantonly take arms against the government of the day, but one where they can address the issues that reach them with greater independence, unencumbered by outmoded rules. And already there are signs, quite subtle but nonetheless noticeable, that the Supreme Court is developing its own ways.

The first change that might strike an observer is that, detached from the rules that regulated proceedings in the Lords, justices no longer refer to each other as 'noble and learned friend', as they were expected to in the House of Lords.

Another difference is the way judgments are presented. In the Lords, they were given in the Chamber and the rules of seniority applied, so that it was not immediately clear which was the 'lead' speech '“ if any. Now, free from the rules that applied in the Lords, the justices have been able to recast the way they give judgments, both orally and in writing.

Those used to reading House of Lords judgments will have noticed the change. 'We now identify the lead judgment and it is printed first. This should help avoid misunderstanding as to which among several judgments should be regarded as 'lead',' says Lord Hope.

There is also a new practice, when the judgment is handed down, of providing the public with information as to what the case is about. This involves preparing a brief summary of the facts and of the decision. And, as most cases attract media and public interest, the court has started issuing this summary in the form of a short press release.

Behind the scenes

Then there is the unseen work, the way justices discuss and progress cases. The arrangements in the House of Lords for discussion of cases beforehand were not satisfactory, says Lord Hope. With no dedicated space in which to meet beforehand, the law lords would gather in the library or a corridor, within earshot of other peers. Not that they would discuss sensitive points openly, but there was a sense that one had to be careful. In such circumstances, any meaningful pre-planning as to how a hearing might go was a logistical challenge.

Holding a meeting before going into cases is now a straightforward business, though it has remained informal. 'We meet in the presider's room shortly before the hearing starts, so we can now exchange a few words in private about the nature of the case and how we propose to handle the hearing,' says Lord Hope. 'Some people think we ought to be doing this much earlier, before the case begins, but we don't because we need to read ourselves in before we discuss the case and we prefer not to commit ourselves to any material extent to a view before the hearing begins.'

Once the hearing is over, the justices do not call for the Bar to be cleared so that they can be left alone in the courtroom to discuss the case, as was the practice in the House of Lords. Instead, they leave the court before everyone else and go to a meeting room elsewhere.

This initial conversation after the hearing allows everybody to form a preliminary view and generally gauge everybody else's thoughts. 'The idea is to formulate preliminary views, so that everybody has an idea as to the way in which minds are working rather than present an idea as to the finality of the view,' says the deputy president.

After this first exchange, the presider '“ the justice nominally in charge of progressing the case '“ will normally identify who should take the lead in writing the first judgment. Most of the time it will be an obvious decision based on a particular person's expertise or on how busy they and others are. The main idea is that there should be somebody responsible for producing a first draft which can then be built upon by others.

In the simplest scenario, other justices can either agree with it as it is or add some thoughts of their own. But there are cases where it may be 'extremely difficult' to know where the majority is going to be. To an outsider looking in, the procedure in such situations may feel a little uncertain as there are no set rules. 'But one way or another a first draft is produced and that sets the pattern for what follows,' Lord Hope explains. What follows next is likely to be the dissenters' drafts, with further drafts circulated to everybody.

'There can be a considerable amount of movement on drafts, because when you see what somebody else has written you may want to expand,' comments Lord Hope. 'Sometimes it's extremely helpful if there is a dissent. This makes you focus on your own points, and you may then wish to explain yourself more fully.'

Judgments are given as soon as possible, but Lord Hope confesses that 'unlike the Court of Appeal which may feel under some pressure to get cases out quickly, here we have the comparative luxury '“ because the case numbers are not so great '“ of being able to take our time'.

To the frustration of some parties, there are no real deadlines in the Supreme Court, unless there is a positive need to fit a particular timeline. Examples include cases involving children, such as child abduction, or cases that must be decided quickly for other reasons, in which case 'we will work to meet that deadline if we possibly can'. One such case is R (E) v JFS, a case brought by parents against a Jewish school whose admissions policy, they say, breaches race discrimination law. In this particular instance, the school has asked if the ruling could be given by mid-January so that, if necessary, it can reconsider its admissions policy. The court expects to hand down its judgment in the third week of December.

In most other cases, however, there is no particular time pressure. 'The priority is to refine the judgment rather than get it out quickly,' Lord Hope says. 'At our level it's more important to produce a judgment that we're all comfortable with rather than feel we're cutting corners in order to meet deadlines.'

No collegiate approach

One thing which is not going to change, however, is the nature of the rulings. Rejecting suggestions that the new court should strive towards issuing single judgments of the court, Lord Hope insists that it should always be possible for all justices, if they felt so inclined, to give their own judgment in every case.

'The vitality of our work is to be found in individual opinions, either where because there are diverging views as to the result or because, although we are agreed about the outcome, we reach this conclusion in different ways. And it's extremely important that this freedom should be preserved,' Lord Hope says. 'We don't want to follow the example of the European Court of Justice in Luxembourg, where a rather anodyne, anonymous document is produced which doesn't actually contain very much in the way of creative thought. This style of judgment doesn't help to advance common law in the way it should do.'

On the other hand, the Supreme Court is now free to give its rulings in the same style as in the Privy Council, where the tradition is that decisions are issued in the name of the Board. Judges remain free to issue their own judgment, but in practice only dissenting opinions are expressed separately.

'The tradition in the Privy Council is there for us as an example, to apply more frequently in the Supreme Court. This is because we are now just as free as the Board is from the rules that applied in the House of Lords,' comments Lord Hope. Indeed, he points out, several of the ten cases already delivered by the new court have been produced in the name of one justice, as the judgment of the court.

But Lord Hope is adamant that the justices are all independent judges with the right to write their own individual judgments if they want to.

'One of the strengths in the way the House of Lords used to operate and in the way we now do things here is that nobody puts pressure on anybody else. We respect each others' views. We absolutely respect each other's freedom to decide the cases in the way he or she thinks fit,' he says.

'We frequently discuss each others' drafts and make suggestions. But the crucial point is that nobody feels driven into a corner because his or her view is unpopular or is a minority view with which the majority strongly disagrees '“ that's what we're here for, to express our views. A minority opinion may turn out to be a leading opinion in the future. There have been several striking examples of that happening in practice.'

On the other hand, one change that Lord Hope strongly supports is the way in which the court is now able to interact with the general public.

'Courtrooms are supposed to be public places,' he says. 'There is no witness cross-examination in the Supreme Court '“ nobody is being paraded before the court in that sense; there is no courtroom drama. People may not find what we do terribly exciting, but it's important that they should feel able to come in and listen.'

Moves towards greater accessibility, including press releases and the filming of hearings, have been derided as mere political publicity. It may well be that they will have little effect on the general public's perception of the Supreme Court. But they are a clear statement that this court intends to move with the times, and, in some ways, it has already started.