The president of the Supreme Court and his second-in-command could be forgiven for the enthusiasm with which they welcomed reporters to an end-of term briefing last week. ‘We think our first year has been a success,’ said Lord Phillips, with justifiable pride.
The move from the House of Lords had been managed without a hitch, he recalled, and the UK’s highest court was much more accessible to the public as a result. There had been some 40,000 visitors during the court’s first year and the public benches were almost always full.
It did not take long for the media to puncture the mood by reminding Lord Hope, the court’s deputy president, of fears he had expressed earlier in the summer that cuts to the court’s budget could compromise the judges’ independence and perhaps even jeopardise the rule of law.
In his Gray’s Inn Reading at Gresham College in June, Hope acknowledged that the judges were not immune from the need to save money. ‘But the bottom line – the level below which they cannot be expected to go – must be for them to determine, not for officials employed by the executive.’
At the media briefing, Jenny Rowe, the court’s chief executive, stressed that casework had a higher priority than school tours. But she admitted that even the court’s core function would be vulnerable to the deepest cuts being contemplated by the government.
‘As 62% of our costs are genuinely fixed,’ she said, ‘a 40% cut causes us some problems. We couldn’t actually deal with any casework, in fact, with a 40% cut.’
One answer, I suppose, would be for the court’s cafe and gift shop to sell more ‘panini’s’ at £3.90 (redundant apostrophe and dubious plural at no extra charge) and teddy bears at £12 (complete with supreme court pullovers).
Money aside, though, the big question is whether the justices of the Supreme Court are more assertive, more willing to take on the executive, than they used to be as law lords.
There can be no definitive answer to this question. Certainly, we have had some strong judgments over the past year. But the law lords were pretty activist under Lord Bingham, and there is no reason to suppose that they would have become supine if they had remained in parliament.
What is interesting is the Supreme Court’s willingness to take on Strasbourg. In Horncastle, the judges had to decide whether a defendant could be safely convicted on the strength of a written statement made by a witness who was not available to be cross-examined.
The European Court of Human Rights had previously ruled that it was a breach of the right to a fair trial for a defendant to be convicted solely or decisively on such hearsay evidence. Normally, our own courts would follow the Strasbourg line. But Phillips explained that there would be ‘rare occasions’ where the Supreme Court thought the European court might not ‘sufficiently appreciate or accommodate’ particular aspects of the UK’s domestic process.
‘In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course,’ he said. ‘This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court.’
But it’s hard to assert this as a sign of newfound boldness. Although the Horncastle decision was delivered by the Supreme Court in December, the case had been carried over from the law lords who heard it in July last year.
Some of the popular newspapers wanted Phillips and Hope to say something about coalition pledges to reform the Human Rights Act – now a very low priority for the government, as I explained here two weeks ago. The judges wisely steered clear of party politics.
But what Hope did confirm – and I have never before heard a serving judge say this so clearly – was that repealing the Human Rights Act 1998 would, by itself, make very little difference to way such rights are enforced in our courts.
As he explained, the most significant change to the UK’s relationship with the Human Rights convention came in 1966, when Britain first allowed individuals to bring cases against the government; until then, claims against Britain could be brought only by other states. As a result, courts in the UK felt obliged to take the convention into account.
‘We had to have regard to the convention in respects to which it was relevant because that was a treaty obligation,’ said Hope. ‘And parliament was to be assumed to have passed legislation compatibly with the UK’s treaty obligations.’
At that time, Hope continued, lawyers had not got to grips with how that principle could be developed.
‘But if you were to take away the Human Rights Act now, all that jurisprudence is there,’ he said. ‘And the right of individual petition will be there. And we will still have to recognise that if we take a decision which is contrary to the human rights convention, somebody is going to complain to Strasbourg and that may cause trouble for the UK.
‘So it’s very difficult to see how simply wiping out the Human Rights Act is really going to change anything until we withdraw from the convention – which, personally, I don’t think is conceivable.’
He is right on all counts. Perhaps the judges have become bolder after all.