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The Decisions and Ideal Points of British Law Lords

  • Chris Hanretty

Abstract

Policy-sensitive models of judicial behaviour, whether attitudinal or strategic, have largely passed Britain by. This article argues that this neglect has been benign, because explanations of judicial decisions in terms of the positions of individual judges fare poorly in the British case. To support this argument, the non-unanimous opinions of British Law Lords between 1969 and 2009 are analysed. A hierarchical item-response model of individual judges’ votes is estimated in order to identify judges’ locations along a one-dimensional policy space. Such a model is found to be no better than a null model that predicts that every judge will vote with the majority with the same probability. Locations generated by the model do not represent judges’ political attitudes, only their propensity to dissent. Consequently, judges’ individual votes should not be used to describe them in political terms.

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Lecturer in Politics, University of East Anglia (email: c.hanretty@uea.ac.uk). The author thanks John Greenaway, Baroness Hale, Simon Hix, Lindsay Stirton, Nick Vivyan, and the Journal's anonymous reviewers for extremely helpful comments on this article. Data replication sets are available at http://dx.doi.org/doi:10.1017/S0007123412000270.

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1 Hansard, 19 November 2001, col. 29.

2 A & Others v. Secretary of State for the Home Department [2004 UKHL 56].

3 Martin, Andrew D. and Quinn, Kevin M., ‘Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the US Supreme Court, 1953–1999’, Political Analysis, 10 (2002), 134–53

4 Wood, Rebecca, ‘Dimensions of Decision Making: Determining the Complexity of Politics on the High Court of Australia’, paper presented at the Annual Meeting of the Southern Political Science Association, Savannah, Georgia, 2002

5 Alarie, Benjamin and Green, Andrew, ‘The Reasonable Justice: An Empirical Analysis of Justice Frank Iacobuccis Career on the Supreme Court of Canada’, University of Toronto Law Journal, 47 (2007), 195226

6 Robertson, David, ‘Judicial Ideology in the House of Lords: A Jurimetric Analysis’, British Journal of Political Science, 12 (1982), 125

Robertson, David, Judicial Discretion in the House of Lords (Oxford: Oxford University Press, 1998)

7 Hodder-Williams, Richard, ‘Six Notions of Political and the United States Supreme Court’, British Journal of Political Science, 22 (1992), 120

8 Volcansek, Mary L., ‘Constitutional Courts as Veto Players: Divorce and Decrees in Italy’, European Journal of Political Research, 39 (2001), 347–72

9 Drewry, Gavin, ‘Judges and Political Inquiries: Harnessing a Myth’, Political Studies, 23 (1975), 4961

10 Segal, Jeffrey A. and Spaeth, Harold J., The Supreme Court and the Attitudinal Model (Cambridge: Cambridge University Press, 1993)

11 Clayton, Cornell W. and Gillman, Howard, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999)

Thomas H. Hammond, Chris W. Bonneau and Reginald S. Sheehan, Strategic Behavior and Policy Choice on the US Supreme Court (Stanford University Press, 2005)

Sunstein, Cass R., Schkade, DavidEllman, Lisa and Sawicki, Andres, Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Washington, DC: Brookings Institution Press, 2006)

12 This second strategy is employed by Robertson, Judicial Discretion in the House of Lords.

13 Tomasic, Roman ed., Understanding Lawyers: Perspectives on the Legal Profession in Australia (Sydney: Law Foundation of New South Wales, 1978)

14 Robertson, ‘Judicial Ideology in the House of Lords’, p. 10

15 J.A.G. Griffith, The Politics of the Judiciary, 3rd edn. (London: Fontana, 1985), p. 199

16 Robertson, Judicial Discretion in the House of Lords, p. 401

17 Lee, Simon, Judging Judges (London: Faber and Faber, 1988)

18 Robertson, ‘Judicial Ideology in the House of Lords’

19 Dubois, Philip L. and Dubois, Paul F., ‘Measuring Dissent Behavior on State Courts: An Application and an Adaptation of Known Measurement Techniques’, Polity, 13 (1980), 147–58

20 Haynie, Stacie L., Sheehan, Reginald S.Songer, Donald R. and Tate, C. Neal, ‘High Courts Judicial Database: Version 1.1’, 2007, downloaded December 2009

21 In the model of judicial decision making that I use, unanimous decisions provide no information about the relative or absolute positions of the judges. While it is true that panels of judges may unanimously give decisions that seem to be particularly left wing or right wing, it does not necessarily follow that the judges who decided those cases were particularly left wing or right wing. Non-unanimous cases, by contrast, allow us to identify differences between justices that may reflect attitudes towards public policy.

22 Disagreements over rationes may be informative about judges’ politics, but are not relevant to the analysis I present here.

23 Lords Emslie, Irvine of Lairg, Taylor of Gosforth, Havers, Wheatley, Avonside and Parker of Waddington.

24 This (North American-influenced) coding of cases may seem strange to British lawyers, who might expect left-leaning judges to find against the state in public law, particularly in immigration and deportation disputes.

25 Jackman, Simon, ‘Bayesian Analysis for Political Research’, Annual Review of Political Science, 7 (2004), 483505

26 Clinton, JoshuaJackman, Simon and Rivers, Douglas, ‘The Statistical Analysis of Roll Call Data’, American Political Science Review, 98 (2004), 355–70

27 Online supplementary information shows that my findings are not sensitive to the choice of approach to modelling the discrimination parameter.

28 Rasch, Georg, Probabilistic Models for Some Intelligence and Attainment Tests (Copenhagen: Danish Institute for Educational Research, 1960)

29 Bafumi, Joseph, Gelman, AndrewPark, David K. and Kaplan, Noah, ‘Practical Issues in Implementing and Understanding Bayesian Ideal Point Estimation’, Political Analysis, 13 (2005), p. 171

30 Jackman, Simon, ‘Multidimensional Analysis of Roll Call Data via Bayesian Simulation: Identification, Estimation, Inference, and Model Checking’, Political Analysis, 9 (2001), p. 227

31 This model in no way constrains cases of a certain directionality to discriminate with respect to the recovered dimension: the credible intervals surrounding the coefficients γ 1k are extremely large and encompass zero.

32 Bridge and Griffiths were chosen because they lay at opposite ends of Robertson's 1998 ‘constitutionalism’ dimension, with Bridge more likely to find in favour of appellants alleging infringement of their civil rights.

33 Values of Geweke's diagnostic were within the range ±1.96 for all but two judges. Trace plots are available on request.

34 The percentage reduction in error (PRE) for each vote is the number of votes in the minority, minus the number of incorrect predictions, divided by the number of votes in the minority. A perfectly predicted vote has an PRE of 1. The APRE is simply the PRE averaged over all votes.

35 The GMP is the exponential of the average log-likelihood.

36 These coefficients are not reported here, but are available on request.

37 Note that, though Viscount Dilhorne was appointed a Lord of Appeal in Ordinary by the Wilson government, he is considered a Conservative appointee, as he previously served as Lord Chancellor under Macmillan and Douglas-Home.

38 Ackner: ‘unashamedly conservative’ (Michael Beloff, ‘Ackner, Desmond James Conrad, Baron Ackner (1920–2006), Oxford Dictionary of National Biography, 2010)

Brightman: ‘[s]een as conservative and relatively pro-Executive’ (obituary, Daily Telegraph, 8 February 2006)

Sedley, Stephen and Quesne, Godfray Le, ‘Diplock (William John) Kenneth, Baron Diplock (1907–1985)’, Oxford Dictionary of National Biography, 2010

Malleson, Kate, ‘Appointments to the House of Lords: Who Goes Upstairs’, in Lewis Blom-Cooper, Brice Dickson and Gavin Drewry, eds, The Judicial House of Lords 1876–2009 (Oxford: Oxford University Press, 2009)

Templeman, Sydney, ‘Roskill, Eustace Wentworth, Baron Roskill (1911–1996)’, Oxford Dictionary of National Biography, 2010

39 Tullichettle, Jauncey of, ‘Guest, Christopher William Graham, Baron Guest (1901–1984)’, Oxford Dictionary of National Biography, 2010

Smith, Thomas Broun, ‘Reid, James Scott Cumberland, Baron Reid (1890–1975)’, Oxford Dictionary of National Biography, 2010

Cretney, Stephen, ‘Simon, Jocelyn Edward Salis, Baron Simon of Glaisdale (1911–2006)’, Oxford Dictionary of National Biography, 2010

Neill, Patrick, ‘Wilberforce, Richard Orme, Baron Wilberforce (1907–2003)’, Oxford Dictionary of National Biography, 2010)

40 Hepple, Bob, ‘Donovan, Terence Norbert, Baron Donovan (1898–1971)’, Oxford Dictionary of National Biography, 2010

Evans, Anthony, ‘Salmon, Cyril Barnet, Baron Salmon (1903–1991)’, Oxford Dictionary of National Biography, 2010

Edmund-Davies, Herbert, ‘Morris, John William, Baron Morris of Borth-y-Gest (1896–1979)’, Oxford Dictionary of National Biography, 2010

41 Farris, Monica Teets, ‘Why Judges “respectfully dissent”: An Analysis of Dissent on the US Courts of Appeals’, Annual Meeting of the Midwest Political Science Association, Chicago, 2001

42 Hettinger, Virginia A.Lindquist, Stefanie A. and Martinek, Wendy L., ‘Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the US Courts of Appeals’, American Journal of Political Science, 48 (2004), 123–37

43 ONeill, Aidan, ‘Judging Democracy: The Devolutionary Settlement and the Scottish Constitution’, Edinburgh Law Review, 8 (2004), p. 186

44 Sunstein et al., Are Judges Political? (in particular, Table 2.1 and pp. 38–39).

45 Jacob, Robin, ‘Intellectual Property’, in Blom-Cooper, Dickson and Drewry, The Judicial House of Lords 1876–2009, pp. 716–17

46 Alan Paterson, The Law Lords (London: Macmillan, 1982), p. 102, quoting Lord MacDermott.

47 Vidal, Jordi Blanes i and Leaver, Clare, ‘Using Group Transitions to Estimate the Effect of Social Interactions on Judicial Decisions’, unpublished working paper, 2010

48 Robertson, Judicial Discretion in the House of Lords.

49 Malecki, Michael, ‘Judicial Behavior Behind Mask and Shield: Modeling the European Court of Justice’, paper presented at the Annual Meeting of the American Political Science Association, 2009

50 Arvind, T.T. and Stirton, Lindsay, ‘Judicial Decision-Making in the House of Lords: A Preliminary Analysis’, paper presented at the Annual Meeting of the Political Studies Association, London, 2011

51 Walker, Thomas G.Epstein, Lee and Dixon, William J., ‘On the Mysterious Demise of Consensual Norms in the United States Supreme Court’, The Journal of Politics, 50 (1988), 361–89

* Lecturer in Politics, University of East Anglia (email: ). The author thanks John Greenaway, Baroness Hale, Simon Hix, Lindsay Stirton, Nick Vivyan, and the Journal's anonymous reviewers for extremely helpful comments on this article. Data replication sets are available at http://dx.doi.org/doi:10.1017/S0007123412000270.

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The Decisions and Ideal Points of British Law Lords

  • Chris Hanretty

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