I opted out of legal studies when I was still a student, choosing to a PhD in Social Administration instead, and my only legal qualification expired a long time ago, but on occasion I still like to dip a toe in the water. I was intrigued enough by a debate reported by Mark Elliott to read a lecture by John Finnis on judicial power. Finnis thinks the Belmarsh judgment was a ‘debacle’, comparable to the nonsense they got into when the House of Lords was reviewing attempts to do the impossible. I agreed about the silly rule on impossible attempts, which was the law when I took the exams, so I wondered whether I might also agree about Belmarsh, and read the judgment front to back. I don’t agree with Finnis, as it happens, but I think I can see the problem.
I’ve only read a handful of judgments like this, but all have followed the same process. Up to nine judges offer individually written, considered arguments, most of which make sense in their own terms. There will usually be a statement to the effect that they agree with a particular one of their number, but hardly anyone does what Lord Caswell did in Belmarsh, and stop after saying, more or less, that ‘I agree with that one’.
This process creates two immediate problems. The first is a problem of over-inclusion. Each of the judges addresses a slightly different agenda. The longest judgment, by Lord Bingham, addresses a long series of issues: the statute, human rights law, international obligations, discrimination, public emergency, and proportionality. In the eight judgements, all the judges consider human rights issues; all refer to the terms of the 2001 Act (which Finnis accuses them of not considering adequately); nearly all consider discrimination (one only indirectly); six consider the public emergency; five refer to proportionality. The difficulty here is that even when judges are similar things in different words, it can be difficult to determine which is the best or clearest statement of the law. When they say different things, it is impossible.
The second problem is a problem of exclusion. Each of the Lords has arrived at an an individual judgment, and to do that they have had necessarily to select the issues that they consider to be most relevant and important. Two judges thought it relevant to refer to the International Covenant on Civil and Political Rights; the others presumably did not. It is much more difficult to spot the issues that no-one thought pursuing, but that is the substance of Finnis’s complaint – that there were further considerations in the statute and the Human Rights Act which ought to have been included too.
Both of these problems have a common root. If the material was ordered thematically, instead of being argued one judge at a time, the contradictions, elisions and omissions would be evident; if there were visible gaps, they could be plugged. The decisions of the Supreme Court are not the decisions of individual judges; they are decisions of the Court. Unless and until they are stated collectively, they will never make sense.