Judicial dissent wanes under Neuberger regime at UK Supreme Court

Judicial dissent is in decline in the UK’s top court as the Supreme Court moves towards a culture of collegiality on the bench, research by The Lawyer has revealed.

Just weeks after he took over as Supreme Court president from Lord Phillips in 2012, Lord Neuberger gave his strongest signal to date that he was in favour of fewer dissenting opinions in leading civil judgments (12 July 2012).

Delivering the first annual BAILII lecture in November 2012 Lord Neuberger said: “While I am emphatically not suggesting banning dissenting judgments it may be that we could have fewer of them and they could be shorter.”

There followed an eight-month period between mid-June last year and mid-February 2014 when there was not a single dissent.

Professor Alan Paterson of Strathclyde University, who has conducted extensive research into the final days of the Lords and the opening days of the Supreme Court, commented: “This is unparalleled in 20 years.”

A snapshot of dissents and solo dissents in the Supreme Court between October 2009 and July 2013 shows Lord Kerr more likely to go it alone than his counterparts. Lady Hale, the only woman sitting on the bench, comes in second.

Between October 2009 and May 2011, Lord Rodger, Lord Kerr and Lady Hale had the highest dissent rate, each with 13 per cent. Lord Brown also produced a high dissent rate, at 11 per cent.

There is a growing feeling among leading silks that Lord Neuberger has done much to heal the rifts of the past and bring about a collegiate working culture at the Supreme Court.

According to Brick Court’s Mark Howard QC, who appeared in front of the court three times in 2013, the 12 Supreme Court justices have created an atmosphere where it is easier to work together. “I’m a great fan of Neuberger,” he commented. “He sets a good tone.”

Others, however, argue that unanimous judgments will do little to encourage individuality on the bench and could stifle legal debate in the future.

Delivering the Birkenhead Lecture in 2012 Lord Kerr said: “Of its nature, law is an ever-changing process. It morphs, adapts and develops in response to previously unencountered arguments and unanticipated circumstances. Certainty of legal outcome is, in many fields, at best a temporary phenomenon.” 

For insight into the changing nature of the Supreme Court under Lord Neuberger read the feature: All for one