Individualism benefits the bench

How much dissent is appropriate? In the Supreme Court, which celebrates its five-year anniversary this October, it is a timely question.

Our cover story this week reveals data that tells a story of growing unanimity on the bench. Statistics reveal that since Lord Neuberger took over from Lord Phillips as president of the Supreme Court in October 2012 there has been significantly less dissent among the senior judges.

It wasn’t always this way. Dissent was common in the House of Lords, while Lord Phillips did little to discourage it on his watch.

Now Lord Neuberger, widely seen as a judicial modernist, is pushing for greater “collaborative working” on the bench. This is increasingly manifesting itself in the form of fewer dissenting opinions.

On the one hand the practical impact of this means more certainty around judgments. The view is that this will mean fewer cases going up from the Court of Appeal to the Supreme Court.

Matt Byrne
Matt Byrne

If that helps unclog the courts, it’s a good thing. On the other hand, one of the prerequisites of a modern legal system is surely dissent. Individualism matters.

Yet, as the data in today’s feature shows, it appears to be disappearing. In the eight-month period between June 2013 and February this year there was not a single dissented decision at the Supreme Court.

As Professor Alan Paterson of Strathclyde University, who has conducted extensive research into the final days of the House of Lords and the early days of the Supreme Court and on whose findings today’s feature is based, comments: “This is unparalleled in 20 years.”

Less individualism means fewer points to challenge further down the road and less fluidity in the law. With public opinion, public law and commercial interests changing daily, this seems to be contrary to what is required.

Lord Kerr, who described the law as an “ever-changing process” when giving the Birkenhead Lecture in October 2012, put it like this: “Certainty or finality in the law is an overrated concept.”

Anyone who, like Neuberger, pushes for “more indolence” is always likely to find some fans, not least in certain dark corners of The Lawyer. But is an increasingly dissent-free Supreme Court what the legal market really needs?