Final Judgment, by Alan Paterson

by Carl Gardner on January 18, 2014

The Supreme Court Library | Dave Merrigan | Creative CommonsUnless you’re a Supreme Court Justice or a retired Law Lord, this book offers you the best available insight into how our highest court operates. In fact, even if you are on the Supreme Court, you’re likely to learn something from Final Judgment.

Based on interviews with twenty-seven Law Lords and Supreme Court Justices, and others involved in what Professor Paterson calls “dialogue” with them – barristers, Court of Appeal judges and others – as well as study of Lord Bingham’s notebooks and analysis of judgments including statistical analysis based on data gathered by Chris Hanretty, Final Judgment is a detailed study of how our highest court has operated and operates now as a human, social institution.

The book straddles the end of the House of Lords and the beginning of the Supreme Court, which seems to have been accidental – but what’s changed over the years tells us a lot about the court now. Since 1970, for instance, while just about half the court’s load still consists of private commercial or family law, the other, public law, half of its work has changed dramatically, human rights and judicial review cases having since 2000 largely pushed out the criminal and tax law cases that used to be heard by the Lords. And hearings before the Supreme Court now last just over two days on average – half as long as in the seventies.

Some Lords used apparently to think preparation for cases a bad thing. Now, it seems Supreme Court Justices all read the papers thoroughly, so that we have what Paterson calls “hot benches”. But still, as Lord Neuberger says, there are “impressionists” like him who prefer to leave some room for a case to firm up in the mind as it’s being heard in court, and “pre-Raphaelites” who like to be on top of every legal detail before the first advocate speaks. If I were on the court the sheer interest of the work would have me obsessively preparing in a pointilliste manner, I suspect, but I can understand why some might think listening to an argument first, before embarking on the sort of intense thought that inevitably draws you into forming a preliminary view, might be a more impartial and ultimately better method of judging.

Half the book, 140 pages of just over 300, is about the internal dialogue among the judges. Again the temporal scope of the book is a strength, and Alan Paterson’s ability to compare modern judges with those of earlier eras (his earlier book The Law Lords was published in the 1980s) gives the book real depth. Inevitably his views of some of our famous judges come through strongly, Lord Reid being cast as the hero (with Lord Bingham in a pretty strong supporting role), Lord Diplock the villain – a brilliant but dark eminence, impatient and bullying with counsel, who manipulated and, according to Lord Wilberforce, “mesmerised” his colleagues. If you’re anything like me you’ll be intrigued by the ways Senior Law Lords and Supreme Court Presidents have managed the court, and how judges try and often fail to influence each other by interventions in court, discussion outside and in draft judgments.

I was surprised to find out that the Justices’ main collective discussion of a case they’ve been sitting on takes place in one relatively short meeting – what Paterson calls the “first conference” – usually immediately following the hearing. Although the first conference is sometimes held over till the following day, and there are sometimes further meetings, I think if I were on the court I’d like half a day at least to prepare for the one big opportunity I’d have to persuade my colleagues (and be persuaded by them) face to face and all at once.

At the first conference each judge outlines his or her position in turn, at some length, beginning with the most recently appointed – although since 2011 these “seriatim” presentations have been followed by a more fluid discussion, and Lord Neuberger – something of a self-confessed “speed merchant”, we learn – apparently prefers simply to indicate where he agrees with others rather than setting out his positions in full. The first conference is where it’s decided which judge should write the “lead judgment” setting out the facts and the majority view – though the majority may well shift later, as Justices circulate what they write. A key section of the book looks at the dynamics of how judicial minds are changed, with personality, time and space – where each judge’s room is located in relation to the others’ – each playing an important role. Lord Brown’s old room in the House of Lords seems to have been the nerve centre of the court in his time.

Paterson tells us “the drafting stage is the key stage of the decision-making process” in our highest court. In the past, Lord Hoffmann and others have tried to influence others by circulating their judgments early, though in 2012 the Justices apparently agreed that the allocated lead judgment should always be circulated first. There’s a fascinating discussion of recent attempts to limit the number of separate concurring as well as dissenting judgments – I’m on the side of those who favour a diversity and multiplicity of judgments, which I’m not sure necessarily is the sign of an unherdable cat. I was once a civil servant and can team-play with the best, but in some contexts the search for consensus can be pushed too far. In politics, agreement must sometimes be reached even at the cost of coherence; but when it comes to judicial reasoning, intellectual clarity matters even more, and should not be compromised for false unity. The weakness of the European Court of Justice is that it’s forced into negotiating single judgments, which sometimes make little sense. The Supreme Court should avoid that at all costs.

The book covers the “dialogue” with Parliament and the government (including discussion of Charles Clarke’s odd attempt to engage with the Law Lords when he was Home Secretary, an idea I was extremely unsympathetic to at the time), with Scotland and with other courts – particularly the Court of Appeal and the European Court of Human Rights. Finally, it looks at the influence of academic and of judicial assistants.

Final Judgment almost begins with the controversy following the Assange judgment, and flatteringly this blog even gets a couple of mentions in a footnote. It’s a typical and telling passage in which Alan Paterson combines analysis of the legal principle behind the controversy – that judges should decide cases on the basis of legal arguments discussed in court rather than on some other legal basis they think of later – with a detailed look at the social and practical reality of what happened. We’re left with the impression of an imperfect though impressive institution, whose life is governed by personality, events and surprise just as much as it is by precedent and principle.

What I’ve not told you is how unusually gripping Final Judgment is. Reading it over the Christmas holiday, I found it hard to put down – something I don’t often feel when reading academic works. More than anything else, Final Judgment is a work of human intelligence about the inner workings of one of our most important institutions. I’ll be rereading it soon, and revisiting it often.

It’s available from Hart Publishing, Wildy’s, Hammick’s and Hive as well as Amazon.

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