19 December 2014Print This Post

Supreme Court justices debate decline in dissenting judgments

Supreme Court

Supreme Court: Dissent rate has “gone down substantially”

Better teamwork, smaller panels and less controversial cases have all been put forward by a seminar attended by Supreme Court justices and other senior judges as reasons for a decline in dissenting judgments at the court.

The seminar, held in October to mark five years since the Supreme Court opened, was held under Chatham House rules, so individuals who spoke were not identified.

According to a note of the event posted on the court’s website this week, the first issue for discussion was the dissent rate, which had “gone down substantially in the last couple of years”.

The note went on: “One reason suggested was the fact that the court is sitting in large panels less frequently, with dissent rates increasing as panel size increases. Another suggestion was the fact that there is more teamwork on the Supreme Court than in the House of Lords.

“The more that the justices work together, the more draft judgments are circulated, the more opportunity that individual justices have a chance to make their views known and influence the content of judgments.

“One judicial attendee pointed to a more prosaic reason for the lower number of dissents: there have simply been fewer cases upon which the justices had cause for disagreement.”

The seminar noted the “fairly dramatic rise” in the use of single judgments following the opening of the Supreme Court in 2009.

Possible reasons were discussed, including the need to respond to concerns in the Court of Appeal about concurring judgments, the retirement of justices opposed to single judgments, the increased workload of the court and greater team work.

“One justice commented that there had been occasions when they had written a draft judgment, but later decided that they were content to withdraw it and sign up to a judgment written by a colleague.

“There was a back-and-forth between several participants about the pros and cons of single judgments. Advantages can include a shorter decision for lawmakers, academics and practitioners to consider. Single judgments ought, in theory, to leave less room for inconsistency or uncertainty as to the applicable legal principles, although sometimes they do not bring greater clarity.

“However, a single judgment has the concomitant disadvantage of leaving the law in a more monolithic, less flexible state, which can be a disadvantage in some cases.”

In terms of its relations with the European Court of Human Rights, one participant at the seminar praised the Supreme Court for its “analytical rigour” and for asserting a “kind of independence”.

The participant went on: “For example, in respect of the European Court of Human Rights, the court has refused to abandon common law rights.

“The court has also suggested that while it should normally follow the decisions of the Grand Chamber of the European Court, the court may depart where a truly fundamental principle of domestic law has been overridden, or there has been a most egregious oversight on this understanding of domestic law.

“Among the questions that this raised is whether the court’s approach is a hostage to fortune, or it is a wise indication of some independence.”

 

By Nick Hilborne

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