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Judicial leadership on the UK Supreme Court

  • Rosemary Hunter (a1) and Erika Rackley (a2)
Abstract

This paper examines judicial leadership on the UK Supreme Court. It does not confine itself to the formal roles of the President and Deputy President. Rather, building on existing categories of judicial leadership, including administrative, jurisprudential and community leadership, it considers the contributions of all 12 Justices. In so doing, it provides a significant compilation of quantitative data on the activities of the Justices of the Supreme Court both on and off the bench from the the Court's inception in 2009 to the end of the 2014-2015 legal year. From this, we suggest that while a number of the Justices engaged in one or two broad forms of leadership – with Lady Hale in particular demonstrating a substantial degree of leadership across all three dimensions – at the other end of the spectrum, at least on the measures used in this paper, a significant minority did not. In the light of this, and the significant number of recent and forthcoming retirements from the Court, the paper concludes by considering the implications of our findings for the future of the Court. We argue that these retirements will result in gaps in both formal and informal judicial leadership, and it is vital that these gaps are filled by appointees who are capable of, and prepared to step up to, diverse and varied forms of judicial leadership.

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We would like to thank Tina Martin for research assistance and Alan Paterson, Kate Malleson, Graham Gee, Brenda Hale and the journal's anonymous reviewers for their extremely helpful comments on earlier versions of this paper.

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1 Much of the literature on judicial leadership focuses on formal leaderships roles, typically that of Chief Justice, see eg Danelski, DThe influence of the Chief Justice in the decisional process of the Supreme Court’ in Goldman, S and Sarat, A (eds) American Court Systems: Readings in Judicial Process and Behaviour (New York: WH Freeman & Co Ltd, 1978) p 486; Greenhouse, LHow not to be Chief Justice: the apprenticeship of William H. Rehnquist’ (2006) 154 Penn L Rev 1365; Hettinger, VA, Lindquist, SA and Martinek, WThe role and impact of Chief Judges on the United States Court of Appeals’ (2003) 24 Just Sys J 91; Gallas, GJudicial leadership excellence: a research prospectus’ (1987) 12 Just Sys J 39; Haynie, SLLeadership and consensus on the US Supreme Court’ (1992) 54 Journal of Politics 1158; McCormick, PAssessing leadership on the Supreme Court of Canada: towards a typology of Chief Justice performance’ (1993) 4 Sup Ct L Rev 409; McCormick, PFollow the leader: judicial power and judicial leadership on the Laskin Court, 1973–1984’ (1998) 24 Queen's L J 237; Osterberg, CL, Wetstein, ME and Ducat, CRLeaders, followers and outsiders: task and social leadership on the Canadian Supreme Court in the early nineties’ (2004) 36 Polity 505; K Leakey ‘The role of the Chief Justice in Commonwealth Africa’, PhD thesis, Queen Mary University of London (2012).

2 UK Supreme Court, ‘Information pack: vacancies for appointment as Deputy President of the Supreme Court [and] Justice of the Supreme Court’ (December 2017), available at https://www.supremecourt.uk/docs/judicial-vacancies-2018-information-pack.pdf.

3 See eg the long-running statistical analyses of the US Supreme Court published annually in the Harvard Law Review (most recently, ‘The statistics’ (2017) 131 HLR 403) and of the Australian High Court by Lynch and Williams beginning in 2003 (most recently, Lynch, A and Williams, GThe High Court on constitutional law: the 2016 and French Court statistics’ (2017) 40 UNSWLJ 1468).

4 See generally Paterson, A The Law Lords (London: Macmillan, 1982); Paterson, A Final Judgment: The Last Law Lords and the Supreme Court (Oxford: Hart Publishing, 2013); R Cornes ‘Gains (and dangers of losses) in translation – the leadership function in the United Kingdom's Supreme Court, parameters and prospects’ [2011] PL 509 (on the UK); and RT Shepard ‘The changing nature of judicial leadership’ (2009) 42 Ind L Rev 767; WF Murphy ‘Courts as small groups’ (1966) 79 HLR 1565 (on the US).

5 There is a considerable amount of general leadership literature relevant to this role (but not relevant to this paper). See eg Stogdill, RM and Bass, BM Handbook of Leadership: A Survey of Theory and Research (New York: The Free Press, 1990); Grint, K Leadership: Limits and Possibilities (Basingstoke: Palgrave Macmillan, 2005); Burns, JM Leadership (London: Harper Collins, 2010); Day, DV and Antonakis, J (eds) The Nature of Leadership (London: Sage, 2nd edn, 2011); Northouse, PG Leadership: Theory and Practice (London: Sage, 7th edn, 2015).

6 Shepard, above n 4, p 767.

7 Ibid.

8 Constitutional Reform Act 2005 (CRA), s 42.

9 CRA, ss 38–39.

10 CRA, s 45.

11 Originally both the President and Deputy President sat on the ad hoc appointment commissions for appointments to the Supreme Court. However, in response to concerns about the dominance of the Supreme Court leadership in appointments to the Court, the Constitutional Reform Act was amended in 2013 to specify simply that the commission must include ‘at least one judge of the Court’ (s 27, as amended by the Crime and Courts Act 2013, s 20 and Sch 13). It has not gone unnoticed that the removal of the Deputy President from a formal role in Supreme Court appointments coincided with the appointment of Lady Hale as Deputy President. In practice, the President continues to sit on selection commissions other than when his or her successor is being appointed, and retains significant influence in the appointments process through his or her position as chair of the panel, or in the selection of his or her nominee when he or she is not a member.

12 Vos J cited with approval by Lord Carnwath in “Do judges use gavels?” The modern judge in myth and reality’, lecture at the Judicial College, 16 January 2013.

13 The Supreme Court Annual Report and Accounts 2015–2016 (2016) pp 42, 16.

14 See eg Lady Hale's discussion of Lord Bingham's leadership style in Hale, BA supreme judicial leader’ in Andenas, M and Fairgrieve, D (eds) Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford: Oxford University Press, 2009) p 209.

15 Cornes, above n 4, p 512.

16 Paterson (1982), above n 4, p 116; Paterson (2013), above n 4, p 146.

17 Cornes, above note 4, p 509; Paterson (1982), ibid, pp 116–119; Paterson (2013), ibid, p 146.

18 See eg Hettinger, above n 1, pp 91–117.

19 Paterson (2013), above n 4, p 147.

20 Hale, above n 14, p 219.

21 Paterson (2013), above n 4, p 148.

22 Ibid, pp 162–164.

23 Danelski, above n 1; D Danelski ‘Conflict and its resolution on the Supreme Court’ (1967) 11 Journal of Conflict Resolution 71.

24 Paterson (1982), above n 4, p 105; Paterson (2013), above n 4, p 146.

25 Paterson (1982), ibid; Paterson (2013), ibid.

26 Paterson (2013), ibid, pp 157, 166–168.

27 Cornes, above n 4, pp 537ff.

28 Also seen in publication of its Annual Report, the introduction of press summaries of decisions, and accessibility of its website. See further R Cornes ‘A constitutional disaster in the making? The communications challenge facing the United Kingdom's Supreme Court’ [2013] PL 266; Cornes, above n 4; and, in a US context, KM Esterling ‘Public outreach: the cornerstone of judicial independence’ (1998–1999) 82 Judicature 112.

29 P McCormick ‘Judges, journals and exegesis: judicial leadership and academic scholarship’ (1996) 45 UNBLJ 139.

30 Ibid, pp 141–143.

31 Eg Paterson (1982), above n 4; Paterson (2013), above n 4; Darbyshire, P Sitting in Judgment: The Working Lives of Judges (Oxford: Hart, 2011); Gee, G, Hazell, R, Malleson, K and O'Brien, P The Politics of Judicial Independence in the UK's Changing Constitution (Cambridge: Cambridge University Press, 2015). These methods too carry their own limitations, including the dangers of researcher capture and the reproduction of received wisdom, to which statistical analysis is relatively immune.

32 Though we, of course, recognise and acknowledge that Paterson also includes statistical analysis in both his accounts.

33 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57.

34 See eg Lynch, ADissent: towards a methodology for measuring judicial disagreement in the High Court of Australia’ (2002) 24 Syd L Rev 470, p 502 and n 88, explaining the methodology used by the Harvard Law Review in its annual review of US Supreme Court decisions, which Lynch and Williams partially follow in their annual review of High Court of Australia decisions (see n 3). Lynch and Williams, however, count individual appeals only in cases involving multiple appeals in which all of the appeals are not decided uniformly.

35 Paterson (2013), above n 4, p 14.

36 Ibid.

37 See eg Lynch, above n 34, p 479; A Lynch ‘The Gleeson Court on constitutional law: an empirical analysis of its first five years’ (2003) 26 UNSWLJ 32, p 39; MC Belleau and R. Johnson ‘Judging gender: difference and dissent at the Supreme Court of Canada’ (2008) 15 IJLP 57, p 58; T Poole and S Shah ‘The Law Lords and human rights’ (2011) 74 MLR 79, pp 85–86. Poole and Shah distinguish between cases which are ‘unanimous’ (involving a single set of reasons, either in a joint judgment or a leading judgment plus individual agreements) and those which are ‘unanimous by concurrence’ (involving a leading judgment plus one or more concurrences with the same result).

38 Cf Belleau, MC, Johnson, R and Vinters, CVoicing an opinion: authorship, collaboration and the judgments of Justice Bertha Wilson’ (2008) 41 Sup Ct L Rev 53, p 56, in which ‘majority’ means reasons supported by a majority of judges, while ‘plurality’ means the situation where no set of reasons commanded a majority.

39 In accordance with tradition, all Supreme Court judgments are delivered orally – often to a largely empty court – rather than simply being issued in written form. Thus the Justice who reads the Judgment of the Court is the one who delivers it orally.

40 We started out attempting to distinguish between brief and more substantial concurrences but abandoned the effort because the distinction proved unworkable in practice.

41 By contrast, Poole and Shah, following the Harvard Law Review, would count these judgments as dissents (above n 37, pp 84, 86).

42 Eg Lynch, above n 34, p 481; Paterson (2013), above n 4, p 11. Cf Poole and Shah, above n 37, p 85 who, like us, distinguish between concurrences (involving substantive reasoning) and simple agreements, which they term ‘I concur opinions’.

43 See also Poole and Shah, ibid.

44 Lynch, above n 34, pp 471–483, following the Harvard Law Review.

45 Paterson (2013), above n 4, p 12.

46 Belleau and Johnson, above n 37, p 60.

47 Belleau et al, above n 38, p 64.

48 Our classification scheme comprised the following subjects: administrative law, civil procedure, company law, consumer law, contract/commercial law, constitutional law, criminal law, criminal procedure, discrimination law, employment law, environmental law, EU law, evidence, family law, housing law, human rights law, immigration/asylum law, insolvency law, intellectual property law, medical law, planning law, property/land/equity, tax law, tort law, welfare law, and ‘other’. Subjects which appeared several times in the ‘other’ category included the Proceeds of Crime Act, insurance, counterterrorism, sentencing and costs.

49 Eg R v Horncastle and others [2009] UKSC 14.

50 Eg British Airways plc v Williams and others [2010] UKSC 16.

51 Eg Henderson v Foxworth Investments Ltd and another [2014] UKSC 41.

52 Comprising company, commercial, competition, consumer, contract, intellectual property, insolvency, insurance, restitution and tax law.

53 Comprising counterterrorism, criminal law, criminal procedure, evidence, proceeds of crime and sentencing.

54 Comprising discrimination, employment, family, habeas corpus, housing, human rights, immigration/asylum, medical, occupational health and safety, privacy, probate, professional regulation, tort and welfare law.

55 Comprising administrative, constitutional, data protection, EU, environmental, FOI, international, planning and water law.

56 Email from Ben Wilson, the UK Supreme Court's Head of Communications, to Erika Rackley, 14 September 2015.

57 The President and Deputy President are appointed through an open appointments process (as set out in the CRA ss 25–31 and Sch 8) rather than the roles simply being allocated to the two most senior Justices. It is relatively uncommon to find a formal position of Deputy President in common law jurisdictions (in contrast to European constitutional courts), though, of course, this does not prevent strong systems of seniority operating on these courts outside formal roles.

58 It is notable that all of these formal leaders other than Lady Hale had previously held other formal judicial leadership roles. Lord Phillips was previously Lord Chief Justice, Lord Neuberger was Master of the Rolls and Lord Hope was Lord President of the Scottish judiciary. Lord Neuberger and Lady Hale of course continued as President and Deputy President of the Supreme Court beyond the period of our study to September 2017, when Lady Hale became President and Lord Mance became Deputy President.

59 Lord Neuberger was a member of the panel in six of the UKSC decisions issued in 2009. Although these cases have UKSC citations and therefore fall within the parameters of our study, they were heard in July 2009, before the formal establishment of the Court, and therefore drew on the membership of the House of Lords. In addition, Lord Neuberger ‘acted up’ in four UKSC cases while he was Master of the Rolls.

60 Chi-square = 26.820, df = 10, p = .003. The p value (< .05) indicates that there was a statistically significant association between the independent and dependent variables (ie whether or not Hale was Deputy President and her proportion of single leads and dissents) rather than the difference being a product of random chance. As explained in the ‘Methodology’ section above, a ‘single dissent’ means a dissent written individually rather than written jointly with another Justice. It does not indicate whether the particular Justice dissented alone or the Court was split. In fact, there was no statistical difference between Lady Hale's propensity to dissent alone or with other Justices before and after she became Deputy President, although statistical analysis was made difficult by the small number of cases involved. In numerical terms, five of her 11 single dissents prior to become Deputy President were dissents with others, while both of her two single dissents after becoming Deputy President were dissents with others.

61 Of the 20 leading judgments Lady Hale delivered as Deputy President, ten were in cases in which she was the presider and ten were in cases in which Lord Neuberger presided.

62 The criteria to be used when considering whether more than five Justices should sit on a panel are set out on the Supreme Court's website, available at https://www.supremecourt.uk/procedures/panel-numbers-criteria.html. They are: If the Court is being asked to depart, or may decide to depart from a previous decision; a case of high constitutional importance; a case of great public importance; a case where a conflict between decisions in the House of Lords, Judicial Committee of the Privy Council and/or the Supreme Court has to be reconciled; or a case raising an important point in relation to the European Convention on Human Rights. It appears, however, that Lord Neuberger took a narrower view than Lord Phillips as to when an enlarged panel was justified – though, of course, subsequent to our study period, he presided in R (on the application of Miller and another) v Secretary of State for Exiting the European Union when the Court historically sat en banc for the first time. See also P Darbyshire ‘The UK Supreme Court – is there anything left to think about?’ (2015) 21 European Journal of Current Legal Issues pp 2–3.

63 Paterson (2013), above n 4, pp 141, 160.

64 Poole and Shah similarly show that the House of Lords was unanimous (on our definition) in 78% and 79% of their pre- and post-Human Rights Act samples, respectively: above n 37, p 87. By comparison, see Paterson (2013), above n 4, p 113, Table 3.7 which is labelled ‘Comparative dissent rates’ but in fact appears to show comparative unanimity rates. This shows the UK Supreme Court more likely to be unanimous than the US Supreme Court, the High Court of Australia and the Supreme Court of Canada.

65 One possible explanation for these declines is that as Justices become more senior, they prefer to sit – and preside – in the Privy Council rather than sitting on the Supreme Court where they do not have the opportunity to preside. However, after reviewing Privy Council cases from October 2009 to July 2015, this hypothesis proved not to be persuasive. During the period of our study the Privy Council decided 237 cases, with the Justices sitting on an average of 39% of the Privy Council cases decided during their tenure. Lord Walker sat on a lower than average proportion of Privy Council cases during the period; Lord Mance sat on a high proportion of Privy Council cases, but he did so uniformly since 2011; the number of Privy Council cases on which Lord Kerr sat fluctuated from year to year without any noticeable upward trajectory. Moreover, opportunities for presiding for more senior judges were not much more available on the Privy Council than on the Supreme Court. The President and Deputy President of the Supreme Court presided in the majority of Privy Council cases (Lord Phillips: 50, Lord Hope: 43, Lord Neuberger: 40, Lady Hale: 32). Lord Mance was the only Justice to preside in a significant number of cases outside this group (27). So while Lord Mance sat on a higher proportion of Privy Council than of Supreme Court cases, this was not always because of the opportunity to preside.

66 The majority of these were from England and Wales, with only five from Scotland and two from Northern Ireland.

67 As noted at n 65 above, the same pattern, albeit to a less extreme degree, prevailed in the Privy Council. In that Court, a Justice other than the President or Deputy President presided in 30% of cases, with Lord Mance in the lead (27 cases), followed by Lords Rodger (12), Walker (10) and Kerr (10).

68 L Blom-Cooper and G Drewry Final Appeal – A Study of the House of Lords in its Judicial Capacity (Oxford: Clarendon Press, 1972) p 179.

69 Paterson (2013), above n 4, p 160.

70 ‘Lead judgments’ here is an aggregate of single leads, joint leads and reading the Judgment of the Court.

71 Paterson (2013), above n 4, p 135.

72 Ibid, p 160.

73 Lord Neuberger ‘Tweaking the curial veil’, The Blackstone Lecture 2014, Pembroke College, Oxford, 15 November 2014 [28].

74 Paterson (2013), above n 4, p 72. See also Gee et al, above n 31, p 199.

75 McCormick, PWho writes? Gender and judgment assignment on the Supreme Court of Canada’ (2013) 51 Osgoode Hall Law Journal 595.

76 Cf Lord Sumption's recently expressed view that ‘legal specialisations are essentially bogus’ and ‘it is all just law’: ‘Family law at a distance’, speech given at the ‘At a Glance’ Conference, Royal College of Surgeons, London, 8 June 2016.

77 However, as Lord Sumption also notes, although ‘[t]here will usually be at least one specialist on the appeal panel … his or her voice will not necessarily be decisive’: ibid.

78 A further way in which a Justice may exercise jurisprudential leadership is in influencing the nature of the Court's caseload through the granting (and refusal) of permissions to appeal (PTA). Analysis of permissions to appeal was beyond the scope of the current research. Chris Hanretty (Professor of Politics, Royal Holloway) has analysed PTA decisions but his work remains unpublished at the time of writing.

79 It should be noted that the number of Supreme Court decisions in which a Justice participated is not necessarily an indicator of total workload. Supreme Court Justices also sit on the Privy Council. Lords Clarke (93), Mance (111) and Kerr (91) sat on more Privy Council cases than Lady Hale (69) during our study period. In addition, two Justices sit on the Court of Final Appeal in Hong Kong for up to a month each year. According to the Court's Annual Reports, during the period of our study Lords Clarke, Walker and Neuberger undertook this role. However, our focus here is on the number of Supreme Court cases, as this is an indicator of presence and hence of some kind of influence on the Court which determines the law of the UK.

80 Lord Brown also sat on the highest proportion of Privy Council cases during our study period (58%). Other Justices sitting on higher than average proportions of Privy Council cases were Lords Toulson, Mance, Wilson, Dyson, Sumption and Hodge. By contrast, Lord Hope sat on 28% of Privy Council cases and Lady Hale sat on 29%.

81 In this context, it is interesting to note that while Lord Hope and Lord Neuberger sat on a much lower proportion of Privy Council cases (28% and 35%, respectively) than of Supreme Court cases, Lord Phillips sat on similar proportions of cases on both courts (41% of Privy Council cases).

82 And even less explicable considering that, as noted above (n 80), he also sat on the highest proportion of Privy Council cases.

83 As noted earlier, this includes both single leads and reading the Judgment of the Court.

84 Lord Toulson also wrote a high proportion of leading judgments in the Privy Council (29%), although Lord Sumption's proportion of leading judgments in the Privy Council was much lower (13%).

85 As noted by Lord Neuberger himself: above n 73, [28].

86 Slotnick, EWho speaks for the Court? Majority opinion assignment from Taft to Burger’ (1979) 23 Am J Pol Sci 60, p 63, cited in McCormick, above n 75, p 608.

87 See also Paterson (2013), above n 4, p 160.

88 Blom-Cooper and Drewry, above n 68, p 93, cited in Paterson (2013), above n 4, p 100.

89 Paterson (2013), ibid, p 104. See also Carnwath LJ in Doherty v Birmingham City Council [2006] EWCA Civ 1739 [62]; Darbyshire, above n 62, pp 4–8.

90 Paterson (2013) attributes this view to Lord Reid: above n 4, pp 99, 101. See also JD Heydon, ‘Threats to judicial independence: the enemy within’ [2013] LQR 205.

91 Paterson (2013), ibid, p 101.

92 Paterson (2013) attributes this view to Lord Phillips: ibid, p 104. See also Gageler, S, ‘Why write judgments?’ (2014) 36 Syd L Rev 189, p 203.

93 Lord Neuberger, above n 73, [22]

94 Paterson (2013), above n 4, p 104; Heydon, above n 90.

95 Munday, R, ‘Judicial configurations’ (2002) 61 CLJ 612, cited in Paterson (2013), above n 4, p 109.

96 Paterson (2013), ibid, p 104.

97 Ibid, p 108.

98 Lord Neuberger, ‘First Annual Bailii Lecture: No Judgment – No Justice’, 20 November 2012 [11]–[13].

99 J Lee ‘A Defence of Concurring Speeches’ [2009] PL 305.

100 Yemshaw v London Borough of Hounslow [2011] UKSC 3.

101 Ibid [48].

102 Ibid [60].

103 Paterson (2013), above n 4, p 108.

104 L'Heureux-Dubé, CThe dissenting opinion: voice of the future?’ (2000) 38 Osgoode Hall Law Journal 495, at pp 496, 508, 511–513; Sparks, CJustice L'Heureux-Dubé: dimensions of a quintessential judicial leader’ in Sheehy, E (ed) Adding Feminism to Law: The Contributions of Justice Claire L'Heureux-Dubé (Toronto: Irwin Law, 2004) p 382; Hale, BMaccabaean Lecture in jurisprudence: a minority opinion?’ (2008) 154 Proceedings of the British Academy 319; Paterson (2013), above n 4, pp 111–112; Belleau, MC and Johnson, RLes femmes juges feront-elles véritablement une différence? Réflexions sur leur présence depuis vingt ans à la Cour suprême du Canada’ (2005) 17 CJWL 27, at pp 3031, 36; E Rackley ‘Difference in the House of Lords’ (2006) 15 Social and Legal Studies 163; Rackley, E Women, Judging and the Judiciary: From Difference to Diversity (Abingdon: Routledge, 2013) chs 5 and 6.

105 Rackley (2006), ibid, p 181.

106 Belleau et al, above n 38, p 79.

107 R v Waya [2012] UKSC 51.

108 Paterson (2013), above n 4, p 110.

109 Ibid.

110 Ibid, p 117.

111 Justice Kirby's dissent rate ranged from 26% to 48% in any given year, and on average he dissented in around one third of his cases on the High Court: Lynch, above n 34, p 516; Lynch, A and Williams, GThe High Court on constitutional law: the 2003 statistics’ (2004) 27 UNSWLJ 88, p 93; A Lynch and G Williams The High Court on constitutional law: the 2004 statistics’ (2005) 28 UNSWLJ 14, p 19; Lynch, A and Williams, GThe High Court on constitutional law: the 2005 statistics’ (2006) 29 UNSWLJ 182, p 190; Lynch, A and Williams, GThe High Court on constitutional law: the 2006 statistics’ (2007) 30 UNSWLJ 188, p 196; Lynch, A and Williams, GThe High Court on constitutional law: the 2007 statistics’ (2008) 31 UNSWLJ 238, p 245; Lynch, A and Williams, GThe High Court on constitutional law: the 2008 statistics’ (2009) 32 UNSWLJ 181, p 188. Note, though, that this is according to Lynch and Williams’ definition of ‘dissent’, outlined above, which would tend to inflate their figures. Justice L'Heureux-Dubé dissented in 37% of her cases in 1984–1990, and in 32% in 1990–1999: Belleau and Johnson, above n 104.

112 See eg, in relation to Justice Kirby, A Lynch ‘Does the High Court disagree more often in constitutional cases? A statistical study of judgment delivery 1981–2003’ (2005) 33 Fed L Rev 485, p 509; and in relation to Australian High Court Justice Heydon, Dyson, Lynch, and Williams, The High Court on constitutional law: the 2012 statistics’ (2013) 36 UNSWLJ 514, pp 522, 529, and Lynch, A and Williams, GThe High Court on constitutional law: the 2011 statistics’ (2012) 35 UNSWLJ 846, p 855.

113 Paterson (2013), above n 4, p 118.

114 Ibid, p 163.

115 We have focused on those Justices sitting at the end of our study period as that was the composition of the Court at the time we undertook the data analysis. Since then, Lords Toulson, Neuberger and Clarke have left the Court and Lady Black and Lords Briggs and Lloyd-Jones have been appointed.

116 By contrast, Lord Hughes wrote the highest proportion of judgments in the Privy Council of all the Justices sitting at the end of our study period (in 43% of his cases), surpassed only by Lord Walker (47%). But Lord Wilson wrote a judgment in a slightly lower than average proportion of his Privy Council cases (22%).

117 Indeed, the Information Pack for the most recent Supreme Court vacancies recognises this, noting that ‘subject to the overriding principle of selection by merit, the appointment panel will wish to ensure as far as possible that there is an appropriate balance of expertise … within the Court’ (above n 2, p 4).

118 For discussion of the impact of the Human Rights Act 1998 on the caseload of the House of Lords, see S Shah and T Poole ‘The impact of the Human Rights Act on the House of Lords’ [2009] PL 347; Poole and Shah, above n 37.

119 This may be consistent with Brodie's claim, relying on Stevens, that Scots Law Lords (and by extension Supreme Court Justices) are distinct because of the nature of their practice at the Bar before judicial appointment: while English barristers tend to be specialists, Scots barristers are generalists (even if leaders of the profession): PH Brodie ‘Scotland after 1707’ in Blom-Cooper and Drewry (eds), above n 68, p 289.

120 See eg Rackley (2006), (2013), above n 104; E Rackley ‘Detailing judicial difference’ (2009) 17 Fem L S 11.

121 We defined a ‘feminist’ issue as one which involved women as women, or which has been the subject of feminist theory; while a ‘gender’ issue was one which raised an issue of difference between women and men.

122 In addition, we categorised five cases as coming from ‘other’ jurisdictions. Three of these came to the Supreme Court through the English and Welsh courts but concerned the law of the Channel Islands. Two were cases in which matters originating from England and Wales and Scotland or Northern Ireland were conjoined.

123 This finding is independent of subject specialisation; that is, it is not that substantial numbers of Scottish and Northern Irish cases involved issues of family law on which Lady Hale and Lord Wilson would be expected to sit.

124 Again, this is not explained by any preponderance in the subject matter of Scottish cases.

125 As noted above (n 48, n 54, n 55 and accompanying text), we categorised human rights cases across topic areas, and included them within our broad ‘Human’ category (reflecting the substance of the rights) rather than our ‘Public’ category (which focuses on state actions pursuant to statutory or prerogative powers). Since each case might be coded under several topics, there would have been overlap between ‘human rights’ and ‘public law’ cases, but the former was not a subset of the latter.

126 See further Cornes, above n 4, and eg the BBC4 documentary The Highest Court in the Land: Justice Makers, first shown in June 2012, which included interviews with Lords Phillips, Rodger and Kerr and Lady Hale.

127 C Green ‘Footage of Supreme Court hearings proves an unlikely hit with the public’ The Independent, 3 January 2016.

128 R (on the application of Miller and another) v Secretary of State for Exiting the European Union and associated references [2017] UKSC 5.

129 See eg J Parkinson ‘White men only? Brexit case and legal diversity’ BBC News, 6 December 2010, available at http://www.bbc.co.uk/news/uk-politics-38211701; L Smith ‘As the Supreme Court mulls Brexit and Article 50, Twitter asks: Where are the women?’ International Business Times, 5 December 2016, available at http://www.ibtimes.co.uk/supreme-court-mulls-brexit-article-50-twitter-asks-where-are-women-1594958; B Karemba ‘The constitutional significance of the UKSC: Is it time to rethink appointments to the Apex Court again?’ Judicial Diversity Initiative blog, 9 December 2016, available at http://judicialdiversityinitiative.org/category/blog/.

130 Eg Lady Hale's Fiona Woolf Lecture for the Women's Division of the Law Society on ‘Women in the Judiciary’ on 27 June 2014 followed a lecture with the same title at St Mary's University, Twickenham, London on 11 June 2014 (which is not online).

131 Former President, Lord Phillips, in contrast published just three speeches during his time on the Court.

132 Eg Lord Neuberger ‘The UK Constitutional Settlement and the Role of the UK Supreme Court’ Legal Wales Conference 2014, 10 October 2014; Lord Neuberger ‘The British and Europe’ Cambridge Freshfields Annual Law Lecture 2014, 12 February 2014.

133 Lady Hale ‘Young Legal Aid Lawyers: Social Mobility’ London South Bank University, 30 October 2013.

134 Lord Hope ‘The Role of the Supreme Court of the United Kingdom’ The Lord Rodger of Earlsferry Memorial Lecture, 19 November 2011; Lord Neuberger ‘Magna Carta: The Bible of the English Constitution or a Disgrace to the English Nation?’ Guildford Cathedral, 18 June 2015.

135 Lady Hale ‘Georgetown Commencement Speech’ 23 May 2010; Lady Hale ‘Salford Human Rights Conference 2010’ 4 June 2010.

136 Eg above n 73; ‘“Judge Not, That Ye Be Not Judged”: Judging Judicial Decision-Making’ FA Mann Lecture, 29 January 2015; ‘Sausages and the Judicial Process: The Limits of Transparency’ Annual Conference of the Supreme Court of New South Wales, Sydney, 1 August 2014; ‘The Future of the Bar’ Conference of the Bar Councils of Northern Ireland and Ireland, Belfast, 20 June 2014.

137 ‘Adoption: Complexities Beyond the Law’ Denning Society Lecture at Lincoln's Inn, 13 November 2014; ‘Marriage is Made for Man, not Man for Marriage’ Medico-Legal Society in Belfast, Northern Ireland, 18 February 2014; ‘Out of His Shadow: The Long Struggle of Wives under English Law’ The High Sheriff of Oxfordshire's Annual Law Lecture, 9 October 2012; Keynote Address at a reception hosted by Collaborative Family Law, at the Reform Club, London, 29 November 2011.

138 Eg ‘Magna Carta Then and Now’ Friends of the British Library AGM, 9 March 2015; ‘The Disunited Kingdom: England, Ireland and Scotland’ Denning Society, 5 November 2013.

139 L Peacock ‘Britain's most senior female judge, Baroness Hale: “My biggest fear … When am I going to be found out?”’ The Telegraph, 18 April 2014.

140 Hale, above n 130; ‘Equality in the Judiciary’ Kuttan Menon Memorial Lecture, 21 February 2013; ‘It's a Man's World: Redressing the Balance’ Norfolk Law Lecture 2012, University of East Anglia, 16 February 2012; ‘Dignity’ Ethel Benjamin Commemorative Address 2010, 7 May 2010.

141 Lord Neuberger ‘Rainbow Lecture 2014 on Diversity’ House of Commons, 12 March 2014; Lord Sumption ‘Home Truths about Judicial Diversity’ Bar Council Law Reform Lecture, 15 November 2012; Lord Phillips ‘Judicial Independence and Accountability: A View from the Supreme Court’ UCL Constitution Unit, 8 February 2011.

142 The defence of illegality reached the Supreme Court on no less that three separate occasions during our study period and it is well known that there are stark differences of opinion among the Justices. See further Lee, JThe judicial individuality of Lord Sumption’ (2017) 40 UNSWLJ 874.

143 Lord Neuberger ‘The Remedial Constructive Trust – Fact or Fiction’ Banking Services and Finance Law Association Conference, Queenstown, 10 August 2014 [1]–[3].

144 ‘Papers’ here includes book reviews and case comments. We have also included book chapters in edited collections in the count, although Lady Hale was the only Justice to publish in this form.

145 This remains true even when Privy Council cases are taken into account. Among the four Justices in our study who joined the Supreme Court at its inception, Lady Hale sat on a total of 285 Supreme Court and Privy Council cases, compared to Lord Clarke's 269, Lord Mance's 267 and Lord Kerr's 257.

146 See TT Arvind and L Stirton ‘Legal ideology, legal doctrine and the UK's top judges’ [2016] PL 418, pp 430–433, who note the importance of institutional design and the need to achieve ‘an appropriate balance of attitudes and dispositions’ on the Court.

147 Cf eg Joshua Rozenberg's suggestion that Lord Toulson should be replaced by a Chancery lawyer (despite the fact that Toulson was a common lawyer): ‘Warming the bench’ Law Society Gazette, 7 March 2016.

148 Arguably, Lady Hale's and Lord Wilson's performance as jurisdictional generalists calls into question the need for separate jurisdictional representation among the permanent members of the Court, with the possibility of drafting in jurisdictional specialists as temporary Justices for particular hearings when necessary. Nevertheless, jurisdictional representation is the one form of quota/affirmative action provided for in the CRA. The point remains, however, that whichever Scottish or Northern Irish candidates are chosen, they ought to be able to demonstrate and be willing to take on some other form of judicial leadership.

149 There is a substantial literature on this point, eg Hale, above n 104; Rackley, above n 104; Hunter, RMore than just a different face: judicial diversity and decision-making’ (2015) 6 CLP 119; T Etherton ‘Liberty, the archetype and diversity: a philosophy of judging’ [2010] PL 727; Sheehy, above n 104; Belleau and Johnson, above n 104.

150 Some examples from the substantial literature on this point include: Lord Neuberger ‘The Role of the Supreme Court Seven Years on – Lessons Learnt’ Bar Council Law Reform Lecture 2016, 21 November 2016; K Malleson ‘Justifying gender equality on the bench: why difference won't do’ (2003) 11 FLS 1; SA Ifill ‘Judging the judges: racial diversity, impartiality and representation on State Trial Courts’ (1997–1998) 39 Boston College L Rev 95; RV McGregor ‘Sandra Day O'Connor’ (2006) 119 HLR 1245; L Moran, ‘Judicial diversity and the challenge of sexuality: some preliminary findings’ (2006) 28 Syd L Rev 565; Kenney, S Gender and Justice: Why Women in the Judiciary Really Matter (New York: Routledge, 2013); Cowan, RDo women on South Africa's courts make a difference?’ in Schultz, U and Shaw, G (eds) Gender and Judging (Oxford: Hart, 2013) 117.

151 See eg A Zaiceva and K Zimmerman ‘Do ethnic minorities “stretch” their time? UK household evidence on multitasking’ (2011) 9 Review of Economics of the Household 181 (inter alia, reviewing the literature on gender and multitasking). See also S Roach Anleu and K Mack ‘Judicial performance and experiences of judicial work: findings from socio-legal research’ (2014) 4 Onati Socio-Legal Series 1015, pp 1032–1034.

152 See eg Hunter, RThe high price of success: the backlash against women judges in Australia’ in Sheehy, E and McIntyre, S (eds) Calling for Change: Women, Law and the Legal Profession (Ottawa: Ottawa University Press, 2006) 281, pp 282283; Thornton, M Dissonance and Distrust: Women in the Legal Profession (Melbourne: Oxford University Press, 1996) pp 203204; Schultz, U, ‘”I was noticed and I was asked …” Women's careers in the judiciary: results of an empirical study for the Ministry of Justice in Northrhine-Westfalia, Germany’ in Schultz, U and Shaw, G (eds) Gender and Judging (Oxford: Hart, 2013) p 158. See also Sommerlad, HLet history judge? Gender, race, class and performative identity: a study of women judges in England and Wales’ in Schultz, U and Shaw, G (eds) Gender and Judging (Oxford: Hart, 2013) 355.

We would like to thank Tina Martin for research assistance and Alan Paterson, Kate Malleson, Graham Gee, Brenda Hale and the journal's anonymous reviewers for their extremely helpful comments on earlier versions of this paper.

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Legal Studies
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