Prof Alan Paterson OBE assesses past and future seven years of the UK Supreme Court
The second Max Watson Memorial Lecture was delivered earlier this week by Professor Alan Paterson OBE, who gave a firsthand insight into the workings of the highest court in the land, the UK Supreme Court, since its inception seven years ago, and assessed what the next seven years may hold.
Professor Paterson, Professor of Law and Director of the Centre for Professional Legal Studies at the Strathclyde University of Law, reviewed the Court’s efforts to become more transparent and engage with the public, as well as how its role in relation to Parliament may change over the coming years, including the possible impact of a vote to leave the EU on the future of the Human Rights Act in the UK.
While praising the increased transparency that had been enabled by recent Court initiatives such as broadcasting hearings on YouTube, press releases, and improved access to the new Court building, Prof Paterson suggested that there was more still to be done. He acknowledged that the Court’s engagement with the public had markedly changed from the first significant case that they decided which had touched the public imagination, concerning 'unfair' overdraft charges imposed on customers by the banks.
In their ruling in favour of the banks, the Court had failed to make clear to the public that, however much they might have sympathised with the public’s concerns, the way the relevant Directive had been implemented in the UK as opposed to some other European countries meant that the OFT had no power to challenge the level of the overdraft charges made by the banks.
In contrast, Professor Paterson pointed to the recent privacy case involving an unnamed celebrity couple, arguing that the Court’s judgment had shown greater awareness of how their decision might be perceived by the public. However, he considered that the Court could still do more to enhance transparency, for example, by publishing a register of interests of the Court Justices, as parliamentarians are required to do.
Professor Paterson went on to outline his research on the nature of the dynamic exchanges between the Justices, small-group decision-making, and the importance of teamwork. Discussing how members of the Court lobby fellow Justices in order to build a majority on the Court, he argued that the move from the House of Lords offices to the new Supreme Court building in 2009 has had an impact on information exchanges among Justices, which may be reflected in the number of dissents individual judges make.
Turning to the way that decision-making in the Court may continue to develop in the future, Professor Paterson described the increasing caseload of the Court as “affecting the way the Justices practice and the duration and content of the oral hearings before the Court". He forecast further changes to the adversarial system itself, asking the audience to consider whether adversarial argument before the Court might become less important: "Will counsel’s contributions to the decision-making process become less proactive and more reactive, as in the US system?”
In fact, Professor Paterson saw evidence of greater proactivity in the relationship of the Court with Parliament, citing the 2014 decision on assisted dying, which implied that, if Parliament failed to pass legislation on the issue, the Court might well be prepared to act on the issue in the future. Another area where the Court appeared to be embracing a more proactive stance is over the use of common law rights rather than the ECHR.
The Max Watson Memorial Lecture was established in 2015 to commemorate the life of Max Watson (1946–2014), FLJS Board Member and Fellow of Wolfson College and St Antony’s College, where he established the Political Economy of Financial Markets programme.