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Final Judgment: The Last Law Lords and the Supreme Court

Final Judgment: The Last Law Lords and the Supreme Court

Author: Alan Paterson
Publisher: Hart Publishing
ISBN: 9781509957156

Published In: October 2021
Format: Hardback , 366 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781849463836

List Price: AU$59.77

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Description
Contents
Author

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The House of Lords, for over 300 years the UK's highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivalled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including more than 40 with Law Lords and Justices, and uniquely, some of their judicial notebooks, this is a landmark study of appellate judging 'from the inside' by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years.

The book demonstrates that appellate decision-making in the UK's final court remains a social and collective process, primarily because of the dialogues which take place between the judges and the key groups with which they interact when reaching their decisions. As the book shows, the forms of dialogue are now more varied, yet the most significant dialogues continue to be with their fellow Law Lords and Justices, and with counsel. To these, new dialogues have been added, namely those with foreign courts (especially Strasbourg) and with judicial assistants, which have subtly altered the tenor and import of their other dialogues.

The research reveals that, unlike the English Court of Appeal, the House of Lords in its last decade was only intermittently collegial since Lord Bingham's philosophy of appellate judging left opinion writing, concurrences and dissents largely to individual preference. In the Supreme Court, however, there has been a marked shift to team working and collective decision-making bringing with it challenges and occasional tensions not seen in the final years of the House of Lords. The work shows that effectiveness in group-decision making in the final court turns in part on the stages when dialogues occur, in part on the geography of the court and in part on the task leadership and social leadership skills of the judges involved in particular cases.

The passing of the Human Rights Act and the expansion in judicial review over the last 30 years have dramatically altered the two remaining dialogues - those with Parliament and with the Executive. With the former, the dialogue has grown more distant, with the latter, more problematic, than was the case 40 years ago. The last chapter rehearses where the changing dialogues have left the UK's final court. Ironically, despite the oft applauded commitment of the new Court to public visibility, the book concludes that even greater transparency in the dialogue with the public may be required.

1: Introduction, Context and Methodology

Sources and Methodology

Judicial Notebooks

Elite Interviews

The Drawbacks of Oral History

Definitions

2: The Dialogue with Counsel

Introduction

The Context of the Dialogue Between Counsel and the Judges in the Final Court

Expectations which Constrain

Initiating the Dialogue

The Courtroom Dialogue

How has the Dialogue Between Counsel and The Court Changed?

Have the Qualities of Good Appellate Advocacy Changed?

Persuasive Advocacy

Robustness and Resilience

Courage

Timing

Written Advocacy

Does Advocacy Matter in the Final Court?

Case Studies in Effective Advocacy

Factors Which Make a Difference

Conclusion

3: Dialogues with Colleagues-The Stages for Discourse

Introduction

The Preparatory Stages

Laying the Groundwork

Involvement in Permission to Appeal Decisions

Being Chosen: The Selection of the Hearing Panel

Doing the Homework: Reading of the Preliminary Materials

The Oral Hearing

Judicial Dialogues in the Courtroom

Conclaves Off-stage: Dialogue Outside the Courtroom

The First Conference

Sharing of Preliminary Conclusions and Discussion

The Allocation of the Lead Judgment

Implications for the Future

The Drafting Stage

Order and Production of Circulation

Multiple Judgments and the Pursuit of Unity

Dissenting Opinions

Circulation Time

Conclusion

4: Dialogues with Colleagues-Efficacy in Judicial Dialogues

Introduction

Context

Stages

Time and Timing

The Composition of the Panel

Approaches to Collective Decision-Making: The Art of Persuasion

Engagement of Judgments

Team-working

Leadership in the House of Lords

Dissents, Individualism and Collegiality

Task Leadership and the US Supreme Court

Social Leadership

Leadership Skills in the Supreme Court

Social Leadership in the Supreme Court

Geography

Conclusion

5: Inter-Judicial Dialogues in Practice

Voting Relationships

Changes of Mind

The Bingham Era 2000–09

The UK Supreme Court 2009–13

Conclusion

6: Wider Dialogues Old and New

The Dialogue with the Court of Appeal

The Dialogue with Academics

Dialogues with Courts Overseas

The Dialogue with Strasbourg

Scots Appeals and London: A Fraught Relationship?

Deference

The Devolution Issues Jurisdiction

Conclusion

The Dialogue with Judicial Assistants

The Job of the Judicial Assistant

7: The Dialogue with Other Branches of Government

Setting the Scene

The Dialogue with Parliament

Judicial Activism and its Drawbacks

Hard Cases Make Bad Law

Justice, Certainty and Fairness

Drawing the Line

Who Really Draws the Line?

Where Should the Lines be Drawn?

Arguments from Parliamentary Activity and Inactivity

Lines of Communication

Conclusion

The Dialogue with the Executive

Intra-governmental Relations

Attempts by the Executive to Engage with the Court

Accountability

The Challenge of Accountability

8: Final Reflections

Alan Paterson, LLB (Edin), DPhil (Oxon), Solicitor, OBE, FRSA, FRSE is a Professor of Law and Director of the Centre for Professional Legal Studies at the Strathclyde University Law School. His research has focused on the legal profession, access to justice, poverty legal services and the judiciary.