Thanks to recent Brexit-related litigation, the UK Supreme Court building on the north side of Westminster Square has become almost as recognisable, if not iconic, as those other notoriously newsworthy courts, the Old Bailey and the RCJ.
All three have distinctive architectural features: the golden statue of Justice topping the dome of the Central Criminal Court at Old Bailey; the Gothic Fairytale façade of the Royal Courts of Justice providing a perfect backdrop for both triumphs and travesties of justice; and the frieze of carved figures, like a medieval pageant, on the front of the Supreme Court. Less pageant-like, but perhaps no less medieval, was the motley collection of demonstrators outside the court the last time I visited, during the hearing of the Miller 2 / Cherry appeals challenging Boris Johnson’s rogue prorogation of Parliament.
The difference between the Supreme Court and the other two is that it has the final word. It is an “apex court”. As such, it has the ability to influence the development of the law not only domestically, where it determines final appeals from all three (increasingly four) jurisdictions of the United Kingdom, but also in other national and international courts. That’s because, like all apex courts, it often considers the decisions of apex courts in other jurisdictions, as well as engaging in other sorts of dialogue in the international sphere. It is a theme that runs through many of the essays in this latest volume of the court’s yearbook, and one of particular interest to me as a reader and writer of law reports.
The effect of Brexit on the court’s ability to continue to exert influence on the development of the law overseas is the subject of a meditation by Lord Mance with which this volume opens.
“The UK Supreme Court might with other apex courts have also been able to contribute, through views expressed in judgments as well as in informal meetings, to developments which would encourage real dialogue and cooperation and a healthier balance between the interests of national legal systems and EU law as determined by the CJEU.
With Brexit, the prospect of any significant influence being exercise by either the UK or by its Supreme Court in such matters would become sadly negligible.”
Judicial contacts with other courts should still continue, he says, pointing out that relations with judges in other jurisdictions remain “extremely cordial and instructive”.
That this is particular so in the case of the common law jurisdictions is borne out in the first substantive section of the yearbook, entitled “Commentaries and Reflections”, which contains two essays on comparative law and, in particular, the conversation that exists between the common law jurisdictions. Lord Reed, Deputy President of the UK Supreme Court, writes on “Comparative Law in the Supreme Court” and Chief Justice Kiefel, of the High Court of Australia, writes on “The Significance of Comparative Law to Common Law Judges – An Australian Perspective”.
They follow an essay in which Sir Geoffrey Vos, Chancellor of the High Court, lays out the groundwork by considering more generally the way in which judges make (or should only make) “Incremental Changes to the Common Law”. Having considered various approaches, or attempts to describe the correct approach, he concludes that judges “are appointed to apply the law, and part of that process is to make principled incremental changes in the common law in appropriate cases”. Without laying down rules, he suggests three broad guiding principles. First, “there is much to be said for harmony in the common law jurisdictions”, and “cross-jurisdictional predictability”. Secondly, “both certainty and internal consistency in the common law are highly desirable”, particularly where the law affects business interests. Thirdly, judges should resist the temptation to make a change “designed specifically to do justice in an individual case” – which recalls to mind that well known adage, “hard cases make bad law”.
Looking at the matter from the perspective of the UK, Lord Reed notes that in the field of private law,
“the use of comparative material is taken for granted in the [Supreme Court]. The legal systems on which we draw are almost always within the common law family. When we are dealing with problems in the area of the common law, we expect to be referred to the judgments of the highest courts of other common law jurisdictions, especially Australia, Canada, New Zealand, Hong Kong, Singapore and the US, and we also consult their academic scholarship.”
He goes on to note
“I always take a particular interest in Australian case law and academic writing, because of their high quality, and I am also a great admirer of the Canadian Supreme Court, which tends to produce particularly stimulating judgments.”
I interject that I can vouch for this as a law reporter. Looking at the reports of cases emanating from Lord Reed’s court, (or courts, since one should also include the Judicial Committee of the Privy Council which considers appeals from a number of smaller overseas common law jurisdictions) one cannot help finding, in the lists of cases referred to in judgment or cited in argument, citations to reported cases from all those other jurisdictions. (Such cases are usually or at any rate primarily cited in their authorised editions, which, as with the official Law Reports published by ICLR, should as a matter of convention, if not practice direction, be cited in preference to other series or indeed the unreported transcripts of judgments identified only by neutral citation.)
Lord Reed continues:
“Putting a complex matter very briefly, we are interested in the doctrine of other common law jurisdictions as a possible guide to the development of our own.”
Commenting on the matter from an Australian perspective in the next essay, Chief Justice Kiefel observes at the outset that there is now no such thing as a singular body of the common law, since the former colonies of the British Empire are no longer required to conform to a uniform and harmonious system. It follows that, in analysing the decisions of other common law jurisdictions, “the current approach of judges of the High Court of Australia is, to an extent, comparative”.
She goes on to discuss the use, under the comparative law approach, of civil law materials, and notes occasions where the Australian courts have hesitated to adopt civil law doctrines which may have found favour in the UK. But she observes that Australian lawyers are less inclined to make use of civil law materials, and that
“to the extent that Australian lawyers have regard to foreign sources of law and legal materials, the focus is generally on other jurisdictions within the common law tradition – principally, although not exclusively, Canada, England and Wales, and New Zealand.”
The continued use of English case law in Australian courts is, from the perspective of a publisher of English law reports, a Good Thing. It may not be quite what Chief Justice Kiefel had in mind, but I am glad to report that Australia is our strongest overseas market and that is why, as I write this review, I am glancing out of the window of my rental apartment at a rather glorious view of Brisbane. I am here to give a talk at the Supreme Court of Queensland; but last week I was in Sydney and had the opportunity of hearing Chief Justice Kiefel speaking, as she gave the opening address at the annual course of the International Association of Law Librarians, of which ICLR was a major sponsor.
This Supreme Court Yearbook, superbly edited by Daniel Clarry, is a treasure trove of senior judicial and academic commentary, the richness of which I have only managed to hint at. I cannot hope to do justice to it in this review, which is why I have concentrated on an area of particular interest. As a fan of judicial speeches and commentary, it is a volume that will, I am sure, continue to provide much food for thought. There are some top notch academic contributions as well, such as the essay by Professor Charles Mitchell QC (Hon), on the complex Littlewoods “overpaid tax” litigation.
It was probably a bit bonkers to bring such a weighty volume with me on my travels, but it gives me the opportunity of quoting from it in my talk. While I have been out of the country, the political turmoil which prompted the last case I attended in the Supreme Court has continued, but from this distance, as for the American delegates at the IALL conference, our well publicised sources of national embarrassments are muted by distance and tend to provoke an indulgent sympathy on the part of delegates from less newsworthy countries, even more so the host nation (whose generous hospitality has more than once prompted thoughts of relocation).
For another (more picturesque) appreciation of the Supreme Court Yearbook, see this blog post by Isobel Williams, who contributed the lovely drawing (done during the “very troubling case” of Owens v Owens  UKSC 41;  AC 899) on the frontispiece: The UK Supreme Court Yearbook Vol. 9: a triumph for girly swots. (She also attended, and blogged about, the Cherry/Miller 2 prorogation cases.)
Daniel Clarry (ed), The UK Supreme Court Yearbook, Vol 9: 2017-2018 Legal Year (Appellate Press, £120).