FROM HOUSE OF LORDS TO SUPREME COURT, JUDGES, JURISTS AND THE PROCESS OF JUDGING by James Lee (ed.). Oxford and Portland, OR: Hart Publishing. 2011. 310 pp. $119.99. ISBN: 978-1849460811
Reviewed by H.G. Callaway, Philadelphia, PA.
The papers collected in the present volume arose from a 2009 seminar organized by the Soci-ety of Legal Scholars and the University of Birmingham, and convened at the Law Society’s Hall in Bristol, England. The seminar, “Judges and Jurists: Reflections on the House of Lords,” commemorated the centenary of the Society; and it chiefly focused on the transition from the House of Lords, as the U.K.’s court of final appeals, to the prospects of the newly instituted United Kingdom Supreme Court. “The aim of the volume,” according to the book-jacket description, “is to reflect upon the jurisprudence of the House of Lords and to consider the prospects for judging in the new Supreme Court.” Given the aims of the Society of Legal Scholars, consid¬er¬able focus is placed on the relationship between the work of judges and that of scholars of law and jurisprudence. The book pervasively highlights the continuing voice of the scholars. Though their writings have no legal authority, the volume’s editor remarks in his Introduction that in 2009, “in six out of the seven final decisions of the House, reference was made to academic literature” (p. 2).
The scholarly character of the volume is emphasized by prefacing a “Table of Cases” (pp. xi-xxvi) and a “Table of Legislation” (pp. xxvii-xxxi) along with the list of contributors and acknowledgements at the front of the book. Thereafter follow the editor’s summary overview in the Introduction (pp. 1-8), a baker’s dozen of very substantial and detailed scholarly papers (pp. 9-302)—the contributors being chiefly professors of law at British universities—and an index.
Reflecting in part the wide historical appellate jurisdiction of the House of Lords, the Table of Cases cited in the volume ranges over judgments from the United Kingdom, Australia and Canada, other Commonwealth counties, the European Court of Human Rights, the European Union, India and others, including cases from the United States. For example, among U.S. cases, the reader will find one as early as MARBURY V. MADISON (1803), and as recent as CITIZENS UNITED V. FEDERAL ELECTION COMMISSION (2010). But only 5 U.S. cases are listed, compared with 29 from the European Union and 14 from the European Court of Human Rights—among hundreds. The overwhelm¬ing majority of the cases cited, as one might expect, arose in the courts of the U.K.
The Table of Legislation cited in the volume has a similar scope but shows a greater concen-tration on U.K., European and International law. The legislation ranges over the globe and centuries, from the Magna Charta down to recent directives from Brussels; from the constitu-tion of Australia, and the Treaty on European Union to the constitution of India and the European Convention on Human Rights. The book suggests, overall, that academic atten¬tion to the wider legal world will assist British judges and the new U.K. Supreme Court in maintaining continuity and integrity of the common law.
Given the force of European treaties and courts and a growing federalism (or devolution) in the U.K., taking the highest British court of appeals out of the House of Lords, and out of the U.K.’s legislative branch, may emphasize a greater division of powers in the British constitu-tion—and the prospect of greater judicial independence. One might suppose that the [*22] Law Lords, sitting within the House of Lords, have felt themselves more bound by parlia-mentary intent. While some seem set to challenge the traditional doctrine of the “sovereignty of parliament” (see p. 72, fn 8), the doctrine has never been viewed as completely inconsistent with judge-made law based on precedent. So, we may ask, as editor James Lee suggest in his own paper, “Would the new Supreme Court get its MARBURY V. MADISON moment?” (p. 72). No doubt, the British or Scottish parliaments might still enact legislation to overturn judicial deci¬sions, but will happen as a matter of course or only on occasion?
Michael Kirby, a former Justice of the High Court of Australia, gave the opening, keynote address at the seminar, “A Darwinian Reflection on Judicial Values and Appointments to Final National Courts.” By analogy with evolution by variation and selection, Justice Kirby argued for diversity in the selection of judges, especially regarding high and final courts, and for the impor¬tance of the U.K.’s new Supreme Court in defining Britain’s national values both domestically and in international relations. Drawing on a wide survey of appointment practices in the U.K., Commonwealth countries, India and the U.S., Kirby argues against overt or excessive politi¬calization of the selection process—disputing the value of the election of judges in the U.S. states and the model and/or contemporary practices of U.S. Senate consent to the appointment of federal judges. He also warns against excesses in the opposite direc¬tion wherein only judges are involved in the appointment of new judges. The values which judges hold are important, and there is a need to be reflective and critical about them. Senior political judgment in appointments is needed, but where the process invites intensive contro¬versy and invasive scrutiny, it threatens the independence of the judiciary of the common law countries. Justice Kirby also argues in favor of judicial review of historical legislative intent where social mores have shifted, citing U.K. cases involving social benefits to families based on same-sex unions.
The next essay, authored by Dr. Aileen Kavanagh, Reader in Law at Oxford, is titled, “From Appellate Committee to United Kingdom Supreme Court: Independence, Activism and Transparency.” Kavanagh chiefly aims to clarify the purpose of the Constitutional Reform Act of 2005, which shifted final appellate jurisdiction from the Law Lords, a committee of the House of Lords, to the new Supreme Court. She notes in passing that the Supreme Court “will hear devolution issues formerly heard by the Judicial Committee of the Privy Council” (p. 35). (The Judicial Committee of the Privy Council, including senior British and Common-wealth judges, depending on the origin of the case, hears appeals from those Commonwealth countries, recognizing its jurisdiction.) But Kavanagh emphasizes that the jurisdiction of the U.K. Supreme Court is otherwise the same as that of the Law Lords. There is a hint of a develop¬ment toward federalism here, but the central idea seems to be that the highest appel-late court of the U.K. should be seen to be independent, in the sense of the common law, and greater transparency has been instituted, including TV broadcasts, in the change-over—along with the physical departure from houses of the British Parliament.
Will the new Supreme Court be more prone to judicial activism, in light of its distinctive constitutional role and position? Kavanagh’s answer is that judges have always made law in the common-law tradition, and there is no reason to think that the pre-existing emphasis on innovation or defer¬ence to parliament and legislation will change. One may suspect that the higher profile of the Supreme Court is designed to highlight the distinctive character and tradition of British law. As Kavanagh puts the point, “the extreme view that judges should never [*23] make law need not detain us here” (p. 40). But that is not to say, of course, that legisla¬tion and precedent are of no interest. The U.K. Supreme Court is expect to maintain a tradi¬tional balance of innova¬tive development and deference within the rule of law.
Elizabeth Cooke is Professor of Law at the University of Reading and Law Commis¬sioner for England and Wales, and her paper, “Taking Women’s Property Seriously: Mrs. Boland, the House of Lords, the Law Commission and the Role of Consensus,” describes in detail the interaction of the Law Commission with the U.K.’s highest court of appeals. Since the Law Commission is charged by statute to review changes to the law and recommend draft legisla-tion to the government—and works by consensus—, Cooke here wears her profes¬sor’s hat, relating authoritatively how the work of the Commission has connected with that of the Law Lords—and now with the Supreme Court. (See also on this topic Alexander Braun’s essay, “Judges and Academics: Features of a Partnership,” pp. 227-253.) One might think that it is all consensus on the side of the Commis¬sion and independent deci¬sions on the side of the Supreme Court. Cooke writes to dispel that impression.
This paper also tells the story of the slow development of law to protect women’s rights in property jointly occupied in a marriage. Before the Law Lords decision in the Boland case (1979), a wife, not registered in the ownership of her home was without recourse, except in recov¬ering proceeds from the sale, if the husband sold the home. But the Law Lords found in favor of Mrs. Boland, and this in spite of contrary recommendations pending from the Law Commission. Though the Boland decision has stood, with some subsequent limitation in further decisions, and women’s rights have been broadened, it also belongs to the larger account, according to Cooke, to understand how the various recommendations of the Law Commission have entered into the subsequent decisions and legislative developments—protecting a wife’s property in land, but also easing the problems of subsequent purchasers and those who grant mortgages. While the courts did not concern themselves with continental European conceptions of community property, e.g., the Law Commission and various academics do so concern themselves, and this has, in degree, entered into the subsequent development of law. Though the Supreme Court may decide a case without consultation, according to Cooke, it may also focus “collective thought following its decisions” (p. 69). The process described is long and complex, yet it provides distinctive, interacting roles for the scholars, the courts and the legislature. We see that a shift in public mores may empower the courts to elaborate or modify the common law.
James Lee opens his own, subsequent paper in the volume, “Inconsiderate Alterations in our Laws” (pp. 71-100), with a quotation from William Blackstone’s famous COMMENTARIES ON THE LAW OF ENGLAND (1756), where Blackstone laments the tendency of hasty legislation, “through a rage of modern improvement,” to “destroy” the symmetry of the common law, “distort” its “proportions” and exchange its “majestic simplicity” for a flood of “specious embellishments and fantastic novelties” (p. 71). In very general terms, this is an argument for the crucial role of the courts and of judicial precedent—in contrast to the work of the legisla¬tive and executive branches of government. Lee’s own arguments and criticism are generally milder. He quotes the Law Lords, Walker and Collins of Mapesbury on the difference between “legitimate purposive construction,” on the one hand, and “impermissible judicial legislation” on the other (pp. 72-73); but he wonders whether “their Lordships,” may experi¬ence a [*24] “Damascene conversion on the symbolic walk across Parliament Square”—to the new headquarters of the U.K. Supreme Court (p. 73). Graham Virgo, in his later essay, “The Law of Unjust Enrichment in the House of Lords,” illustrates the contrary point: “The unjust enrich¬ment principle was created by the House of Lords on 6 June 1991 in LIPKIN GORMAN V. KARPNALE LTD.” (p. 169).
Lee argues, focusing on private law, in contrast to public law and human rights, that “at the very least, legislative reversals of particular private law decisions are not preferable to judicial development of the law”(p. 73). The argument concerns the “coherence” of the law and the need of adequate legislation to be informed by the judges’ consideration of the details, similarities and differences among particular cases. One may wonder if moving the final appellate function out of the House of Lords will decrease legislative competence. Drawing on Ronald Dworkin’s discussions of related issues, Lee is concerned about legislative “checkerboard solutions” and mentions the hypothetical case “that a parliament might choose to legislate that there should be strict liability on the manufacturers of automobiles, but not on those of washing machines” (pp. 75-76). Incoherence or lack of integrity of the law may arise from federal structures, from “logrolling and compromise,” and from partisan and ideological shifts in the legislature. While allowing that “judicial precedents that are found unsatisfactory under democratic scrutiny” may be reversed by parliament, Lee is especially concerned with legislative reversals of specific judicial decisions where a government sees itself as simply challenged on its policies, suffering “defeats” from the judiciary, and where no reasonable arguments for reversal are provided.
In the subsequent essay by Jenny Steele, Professor of Law at the University of York, and titled “(Dis)owning the Convention in the Law of Torts” (pp. 101-128), the British Human Rights Act (1998) is discussed—particularly in its relation to and subsequent influence on the law of torts. The Human Rights Act incorporated the European Convention on Human Rights directly into British law; but the argument is that the Law Lords were reluctant to extend British tort law in light of the European Convention—partly from a felt need to protect public authorities from liability claims and partly from a reluctance to cede judicial primacy to the European Court of Human Rights in Strasbourg. In a somewhat similar manner, Anthony Arnull, Professor of Jurisprudence at the University of Birmingham, in his paper “Keeping their Heads above Water? European Law in the House of Lords” (pp. 129-148), considers the influence of European law, and the Treaties of the European Union, upon decisions of the Judicial House of Lords. The Law Lords have sometimes invoked European law and some-times avoided doing so, and Arnull illustrates both tendencies and the ambiguous attitude toward European law. Arnull points out that the U.K. Supreme Court has already caused some controversy by declining to make reference to the European Court of Justice in the case of OFFICE OF FAIR TRADING V. ABBY NATIONAL PLC AND OTHERS (2009).
Several further papers in the volume would be equally of interest here for their wealth of specialized detail and expertise, but the particular contributions briefly discussed above will perhaps suffice to illustrate the overall character and concerns of the volume. In general terms, this book provides a great deal of insight into contemporary developments in British law—and especially in light of the growing interaction of European law with the domestic common-law tradition. It is a book of interest for scholars of British and European law, but it also illustrates, from within the councils of contemporary [*25] British legal thought, a central aspect of British legal and political concern about Europe and the European Union. Editor Lee, the Soci¬ety of Legal Scholars and the publisher can be proud of this finely crafted, balanced and intricately detailed volume.
CASE REFERENCES
United Kingdom
LIPKIN GORMAN V KARPNALE LTD, (1991) 2AC 548
OFFICE OF FAIR TRADING V ABBY NATIONAL PLC AND OTHERS, (2009) UKSC 6
WILLIAMS & GLYN’S BANK LTD. V BOLAND, (1979) Ch. 312 (CA) 332
United States
MARBURY V MADISON, 5 US 137 (1803)
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, 130 Sct. 876 (2010)
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© Copyright by the author, H.G. Callaway.
