In praise of dissenting judgments

I wrote some years ago an essay on dissenting judgments for an OUP publication to commemorate Alan Rodger, former Lord Advocate and Supreme Court justice. I am prompted to reference this because of its possible relevance to the recent unanimous decision of the 11 justices of the Supreme Court in Miller 2, the prorogation case.

The essay as a whole discusses in some detail the pros and cons of dissents in a variety of contexts including of course final appellate courts, and at one point I note that it was once said (by either Lord Wilberforce or Lord Ackner) that a member of the appellate committee of the House of Lords “dissents only when his exasperation at the sheer stupidity of his colleagues outweighs his own natural indolence.” More relevant for present purposes, however, is this passage, which follows on from my recognition that in the great majority of final appeals a dissent will have no sensible prospect of ever influencing the future development of the law:

Does that, however, mean that a dissent in such circumstances would constitute, as some would say, no more than a futile gesture and that it should therefore be discouraged? I would suggest not. On the contrary, there are many occasions when, as I would contend, however plain it may be that a dissent will no more influence the future development of the law than the outcome of the particular appeal before the court, a judge should nevertheless, assuming always that he or she is clear in his or her own mind that the majority’s view is wrong, give a reasoned judgment saying so.

In the administration of justice, it has been said, the most important single person in court is the defeated litigant. Generally, the terms of the majority judgment or judgments will make it plain that the losing party’s arguments have been fully heard and taken into account and will explain why they have nevertheless not prevailed. But that is not invariably so. And whether or not that is so, it seems to me that nothing is better calculated than a dissenting judgment to demonstrate beyond question that the losing side’s case has been properly understood and, indeed, recognised to have real force, force sufficient to persuade one member of the court at least that it was right. This may be of comparatively small comfort. Some might suggest even that it may compound the litigant’s disappointment to think that he or she came so close to success. In my experience, however, the losing party greatly prefers to realise that the strength of his argument was properly recognised than to be left wondering if his case was ever really put across to the court. And, although no doubt this matters less, that is true of the defeated litigant’s lawyers no less than of the litigant himself. If, moreover, any of the judges below (whether at first instance or in the Court of Appeal) happened to differ in their conclusion from that arrived at by the majority in the Supreme Court, they too may be expected to feel gratified and to a degree reassured by a dissent which indicates that their views were not perhaps after all so plainly erroneous.

Now all this, of course, is directly relevant only in a case where one at least of the judges is of the clear view that the majority is mistaken. Turning then to Miller 2, it appears that no one was. This I regret. But what more particularly I regret is that the unanimous Supreme Court judgment stands in the sharpest and largely unexplained distinction to the unanimous first instance decision of a most authoritative Divisional Court consisting of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. I do not say that the Supreme Court decision is wrong; on the contrary, I believe that it can and must be justified on the narrow factual basis that, at that stage, the government, for whatever reason, refused to put forward any but the most obviously unsustainable justification for so long a prorogation, namely the need to write a Queen’s Speech. The Divisional Court by contrast had recognised that there were additional underlying political reasons for the prorogation, reasons beyond the court’s proper competence to judge.

Given the obvious constitutional importance and sensitivity of the case, given the wide public expectation that the courts would be unlikely to interfere with the parliamentary process, and given the apparent strength and authority of the Divisional Court’s own reasoned judgment and ruling, surely the very least that was required of the Supreme Court was a full explanation of why and where the first instance judges were to be regarded as so profoundly mistaken in their judgment. I recognise of course the pressures of time the Supreme Court was under, but if I were one of the Divisional Court judges, I would feel distinctly bruised by all this.

Frankly, I would have preferred at least one dissent. For the reasons given in the passage in my essay quoted above, I believe that would have strengthened, not weakened, the judgment as a whole. But above all I believe that it would have gone some way to allay the feeling, indeed the conviction, of many Brexiteers and others who so strongly supported the government on this issue, that this was in fact a stitch-up, with a pre-determined outcome, unanimity agreed under pressure in advance. In short, I worry that too many regard the justices here as having conspired against the laity, to reference one of Bernard Shaw’s characters in The Doctor’s Dilemma. Of course I know full well that they did no such thing—the very idea is absurd and outrageous. But where perception is of such importance, sadly Miller 2 leaves many uneasy.

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It used to be said, not entirely flippantly: “It is the job of a High Court Judge to be quick, courteous and wrong. Which is not to say that the Court of Appeal should be slow, rude and right. For that would be to usurp the function of the House of Lords.”

All courts nowadays are more user-friendly, altogether less acerbic, than in times past. So put the question of civility aside. Some question nevertheless remains as to the separate roles for the Court of Appeal and, now, the Supreme Court. Do we really need, some ask, a further level of appeals with all the additional expense, delay and uncertainty that this involves?

That certainly was a question raised by Lord Justice Carnwath at the time the Constitutional Reform Act 2005 was radically re-designing much of our legal architecture (though his antipathy towards a final over-arching appeal body softened somewhat upon his own subsequent elevation to the Supreme Court).

For the little it is worth, it is my own view that there should indeed be a Supreme Court, with jurisdiction, as now, over all four constituent parts of the UK (Scottish criminal, non-Human Rights Act based, appeals apart). But I add this: it should be smaller (comprising nine, not 12, Justices); it should sit en banc (I can imagine few outcomes more unsatisfactory than, say, as can now occur, a 3:2 majority overturning a unanimous Court of Appeal decision upholding the first instance judge); it should (and inevitably would) hear fewer appeals than at present, essentially only those (though not necessarily of constitutional significance) raising issues of high principle; and it should cease, save perhaps in the rarest cases, hearing Privy Council appeals—these should rather be heard by Court of Appeal judges, all qualified to sit in the Judicial Committee of the Privy Council.