“The antithesis of politics?” The law lords in their robes, specially commissioned for the opening of the new Supreme Court, in 2009

“I think the public is beginning to discover our existence,” said Lord Phillips, president of the Supreme Court. “I am extremely enthusiastic about this.” We were sitting in the court’s new building and looking out across Parliament Square. The law lords, the UK’s most powerful judges, used to work in the cramped corridors of the House of Lords. But on 1st October 2009, they moved across Parliament Square, taking their powers with them, to become the first Supreme Court justices in the nation’s history. New robes were commissioned for the occasion (see opposite), with an ornate design of black brocade and gold lace by Ede and Ravenscroft of Chancery Lane—at a total cost of £137,956. Behind all the finery resides formidable power: the Supreme Court is taking decisions that have the potential to affect almost every aspect of our lives. And when it comes to being the target of public scrutiny, the justices are more ambivalent than Phillips’s assertion might suggest.

The court has been busy in the last few years. It has heard cases involving copyright law, the army, the security services, immigration, religious freedom, the right to education, the DNA database, parliamentary privilege, counter-terrorism and bank charges—and its judgments have caused controversy. One ruling even drew hostile comment from David Cameron in February, who was “appalled” by a decision made in the court’s first 12 months granting sex offenders greater rights of appeal. Cases have also caused internal ructions. Lady Hale, the only woman on the court, was aghast at the decision taken by her colleagues in 2010 to recognise pre-nuptial agreements.

Such disputes risk obscuring a crucial point: that in a democracy, the role of a Supreme Court can only be justified if there is proper public accountability of the justices. It is important, then, that the public has more information about the views of those who sit on this court. Sky News, the cable news broadcaster, recently opened a live streaming service on its website, which allows the public to follow the court’s proceedings online. This is a welcome development; but still, very little is known about the justices themselves outside the legal community, not least because they vehemently defend their claim to neutrality and political independence.

Yet they do have pronounced political leanings, albeit ones that are less publicised than those of their US counterparts. If you spend time talking to the British justices and analysing the history of their judgments, as I have done, the picture that emerges is one of a court split by the tension between liberal and conservative views. The liberal view can be defined as tending to side with the interests of the individual; the conservative, with the interests of government. On balance, the liberal tendency is gradually prevailing. That internal tension, in my view, is good for the country. But it is clear that the process of selecting justices must be more open, and more public assessment of their political views is needed. And that is not a prospect they would welcome, for all their commitments to openness.

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The UK Supreme Court, unlike America’s, is responsible for the development of all areas of the law. Hearings are long, often lasting several days and the workload is therefore relentless. The court has 12 justices, as well as other senior judges who occasionally join the court, and they usually hear and decide cases in panels of five. The composition of the panels depends on the subject in hand, as justices have specialisms. When the issues are particularly controversial, the justices may sit in panels of seven or nine, although that does not remove the challenge that a differently-composed panel might reach a different conclusion.

By developing the common law and by interpreting statutes, Supreme Court justices have the power to make law. “Our challenge, which has always been there,” Phillips said, “is to strike the right balance between developing the law according to principle and having regard to the sovereignty of parliament.” The court was meant to end the constitutional anomaly whereby the highest tier of the judiciary was embedded in one of the houses of the legislature: the Lords. This, it was thought, would secure the “separation of powers” between judiciary and legislature.

Before the court opened, one law lord told me that, with the court’s increased prominence, he expected it to gradually become more politically active. Likewise, Lord Woolf, a former Lord Chief Justice, suggested that the new building would act as a catalyst, quickening the already noticeable transition, as a serving justice put it, quoting John Adams, to the American idea of “a government of laws and not of men.”

The new Supreme Court in session

The comparison with the US is relevant. In 1935, the justices of the US Supreme Court moved from the Capitol building to an imposing new courthouse, which had been built to reflect the court’s central constitutional role. At the time, judicial “activism” was on the rise. In the US, where Supreme Court justices are appointed by the president, the rulings have tended to be partisan and predictable—although there is also a long tradition of presidents being disappointed by their own appointees. In Britain, by contrast, where justices are nominated not for their political affiliation but because they are said to have the best legal minds in the country, the principle of judicial independence is firmly voiced. “We’re the antithesis of politics, really,” said Lord Hope, the Court’s deputy president who, having become a law lord in 1996, is the longest-serving justice.

Hope is a descendant of a long line of Scottish lawyers, and can trace his lineage back to the Lord Advocate to Charles I. Perhaps it is inevitable, then, that he would wish to maintain the mystique of law and the impartiality of judges. “It would be a mistake,” he said, “if one went into a case with some kind of preconception as to what the value judgment should be. Certainly political values don’t emerge.” Or, as Phillips has claimed: “We deliberately tend to suppress our own value judgments.”

But not all the justices accept this view of neutrality. As Lady Hale put it, judicial decisions are often guided “not only by the judge’s own view of what is right and just, but also by his or her personal philosophy of judging.” Indeed, at the highest appellate level almost all problems, whether they arise out of precedent or statute, require an interpretation that is inevitably dependent on the judges’ moral and political values. Looking at the literal meaning of a law or at the “intention” of parliament when the law was formulated is clearly inadequate. Judges necessarily read into the law meanings that derive from their own principles. Added to which the Human Rights Act (1998) stipulated that judges should ensure that government and parliament comply with standards on European human rights: standards that are highly ambiguous.

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So who are these justices, and what decisions have they taken? The record of rulings by the UK’s top judges during the 20th century shows a group of men whose judicial philosophy was marked by a strong deference to the government and the legislature, and an inclination to follow legal precedents: they were conservatives. From around the 1960s, part of that conservatism fell away. The judiciary became bolder in its attitude towards precedents, more willing to innovate and depart from established principles. From the 1960s onwards, the judiciary also began to advance its power to carry out judicial reviews of government action. Yet although it used that power, often to the frustration of ministers, the judges still tended to rule in favour of the government. During the 1980s they upheld the Thatcher government’s refusal to house a homeless family; they upheld severe curtailments on unions and the right to strike; and they upheld the government’s use of injunctions against the press over the Spycatcher memoirs of Peter Wright, an MI5 agent. In that last case, one of the dissenters, Lord Bridge, warned that “freedom of speech is always the first casualty under a totalitarian regime.”

For most of the last decade, the law lords remained predominantly conservative, which is to say that they repeatedly found in favour of the government and against the individual. There were of course famous exceptions, such as in 2004 when the law lords ruled, with Lord Walker dissenting, that indefinite detention of suspected international terrorists without trial was unlawful. But for the most part, the court produced a series of illiberal decisions, especially when it came to the vast restrictions on civil liberties in the name of counter-terrorism (well-documented in Keith Ewing’s 2010 book Bonfire of the Liberties). Ewing, a law professor at King’s College London, examines the growth of legislation arising from the “war on terror” of the New Labour period. He regards much of this legislation as a threat to the rights of the individual.

Lady Hale, the only woman on the Supreme Court

Yet the last decade also witnessed the emergence of liberal tendencies within the nation’s highest court. The senior law lord between 2000 and 2008 was Lord Bingham, who died on 11th September last year and who, this May, was posthumously awarded the Orwell prize for his book The Rule of Law. Many commentators view him as “a key guiding spirit” of the court’s new liberalism. In truth, however, the judges often had no choice. The Human Rights Act, which came into force as Bingham became senior law lord, was the main reason for the liberal shift. “If you look at Lord Bingham’s record in the Court of Appeal,” said Hope, “you may have thought that he was very traditional. But of course then we were faced with the human rights thing and it was a different game that he was playing.”

At the time, Bingham warned his colleagues to avoid attracting the “liberal” or “conservative” tag. Yet his own judicial philosophy remained broadly conservative. “He was not a man who naturally reached for a position antagonistic to that of power,” one justice told me. “In that respect he resembled the other great intellectual titan on the court in his time, Lord Hoffmann.” Hoffmann was another extremely dominant character. He was famously involved in the Neil Hamilton “cash for questions” case, during which he paved the way for the former MP to sue the Guardian newspaper for libel. In another case, he ruled that Trevor Fisher, a murderer found guilty in the Bahamas, could be executed legally, a sentence that was duly carried out. Today, by contrast, the justice I spoke to believes that “the current Supreme Court is more nicely balanced, in the sense that it has fewer really powerful and driving personalities in it.”

That said, and despite its recent flicker of liberalism, the Supreme Court is largely composed of the old law lords and tends towards conservatism. An example came on 9th December 2009, just two months after the court opened, when it stopped a former MI5 agent’s attempt to publish his memoirs. According to Lord Brown, the matter was to be decided by a secret tribunal whose decisions could not be appealed or challenged by judicial review. Brown previously served as the Intelligence Services Commissioner, and Keith Ewing has criticised Brown for being too close to the security services, which as a judge he is supposed to scrutinise.

The following month, however, the court showed a more liberal side. On 27th January 2010, it issued its judgment on the asset-freezing regime introduced by the Labour government. Under this regime, the Treasury could freeze an individual’s assets on the basis of a mere “reasonable suspicion” that he “may be” involved in terrorism. The court concluded that the rules, which had received no parliamentary scrutiny, lacked legal authority and that “reasonable suspicion” was too broad.

The task of responding to the court’s ruling fell to the coalition. Conservative ministers initially backed the “reasonable suspicion” test and drew support from Lord Rodger, who had warned in his judgment that raising the required standard of proof could prevent the Treasury from freezing the assets of terrorist suspects. But after strong opposition from the Liberal Democrats and many peers, the government reluctantly accepted a slightly higher threshold. Lords Phillips and Mance  had wanted a much higher threshold still: the asset-freezing powers, they said, should apply only to those people who have actually been arrested and charged.

This seesaw between conservative and liberal rulings reflects the different composition of the panels. In June 2010, the court decided a case brought by the mother of Private Jason Smith. While serving in Iraq in August 2003, Private Smith became sick from the heat, which exceeded 50 degrees centigrade in the shade. He complained, but was told to continue his work. Four days later, he died from heatstroke. The question was whether soldiers outside their military base were protected by the right to life under Article 2 of the European Convention on Human Rights. The Supreme Court ruled by a 6–3 majority that soldiers were only protected when inside their base; the framers of the Convention in 1950, the majority said, would surely not have intended it to apply to the armed forces serving abroad. Three of the more liberal justices—Lady Hale and Lords Mance and Kerr—dissented: for them, the protection of Article 2 covered soldiers wherever they may be. Lords Clarke and Dyson, also liberals, did not participate as they had previously decided the case in the Court of Appeal. But if they had sat on the case in the Supreme Court alongside Hale, Mance and Kerr, the decision could well have been different.

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Given this tension, what does the future hold? On 4th May, the Supreme Court and Downing Street jointly announced two new justices. One was Sir Nicholas Wilson, a family law judge from the Court of Appeal. Wilson will almost certainly be on the liberal wing as a justice, but his views on many issues remain a mystery. The other appointment was Jonathan Sumption QC, the first person since 1949 to jump straight from the Bar to the highest court. A former history fellow of Magdalen College, Oxford, Sumption has vast intellectual power. He has written three acclaimed volumes on the Hundred Years’ War, with more to follow. His politics are somewhat mixed: “I’m basically a Tory who votes Labour much of the time,” he said in a 2000 interview with The Lawyer. During the 1970s, he voted Labour, but was an adviser to Keith Joseph, the architect of Thatcherism. The two co-authored a book called Equality in 1979.

I asked Sumption what his judicial philosophy would be. “You cannot relate the political sympathies of judges to the way they decide cases,” he said. However, the indications are that he is a judicial conservative. His specialism was in commercial law, but he frequently represented the government, including in the Hutton inquiry. “A judge,” Sumption said, “ought to have a healthy balance of respect for the governmental function combined with scepticism about the motives of particular ministers or officials.” In his case, as with Brown’s, his respect for government may outweigh any scepticism.

This was manifested in the clash between Lord Neuberger, the Master of the Rolls, and Sumption in February last year, when the Court of Appeal gave its judgment on MI5’s complicity in torture in the case of Binyam Mohamed. In his draft judgment, Neuberger accused the security service of having a “dubious record when it comes to human rights and coercive techniques” and a “culture of suppression” of information. Sumption wrote privately to the court asking them to remove the most severely critical paragraph. Neuberger swiftly altered it. But Mohamed’s lawyer leaked the private correspondence to the press, causing Neuberger to describe his willingness to tone down his remarks as “over-hasty.” Fearing that the press would think that judicial independence had been subverted, the justices decided to release the original paragraph alongside the final, altered judgment. Neuberger’s words would be used in other cases to cast doubt on the government’s reliance upon information from MI5.

Like others on the court, Sumption is worried about the reach of the European Court of Human Rights (ECHR). The UK’s judges are obliged to “take account of” the decisions of the Strasbourg court, but there is disagreement over what that entails. According to Sumption, the margin of appreciation—the discretion that Strasbourg allows contracting states—is “absurdly and excessively narrow.” Many are eager for more decisions in which the court expressly refuses to follow Strasbourg, such as in the case of prisoner voting rights. Earlier this year, the High Court threw out an attempt by prisoners to gain the right to vote, rejecting the argument that it was a right conferred on them by the ECHR. “One of the things which is difficult for us, as a Supreme Court, to accept,” Rodger said, “is that we are not really supreme in a lot of these topics. That is a strange aspect of our situation.” Whereas the conservative justices feel that the ECHR has often gone too far, liberal ones feel that it has not gone far enough.

Jonathan Sumption, a new appointment: “basically a Tory who often votes Labour”

To recognise that the justices hold different values—and that these values influence their decisions—is to recognise that there needs to be greater accountability, both at the appointment stage and thereafter. “I’m all in favour of us being under public scrutiny,” said Hope, who played a key role in the transition to the new court where TV cameras now relay hearings to an online audience. The justices are keen to stress this new openness although some feared that the cameras would give rise to grandstanding.

In the US, Supreme Court hearings are much shorter than in the UK, and the country’s public affairs broadcaster, C-SPAN, insists that proceedings should be recorded and televised. The channel even covered the UK Court’s opening ceremony in October 2009 and showed a large part of its first hearing. But until recently, the unmanned cameras in the UK’s highest court had produced unwatched footage.

Genuine scrutiny is still conspicuously absent. In that respect, the US leads the way; justices attend congressional confirmation hearings, at which members of the Senate Judiciary Committee probe their judicial and political philosophies. But these hearings are not always satisfactory. Ronald Dworkin, writing in the New York Review of Books, called recent confirmation hearings “a waste of everyone’s time, a parade of missed opportunities.” Due to the partisan emptiness of the hearings, which Dworkin accepts are a democratic necessity, the justices say that they merely apply the law. Chief Justice Roberts did this when he was confirmed in 2005. “Judges are like umpires,” he said. “Umpires don’t make the rules. They apply them.” (This statement has been shown to be questionable, not least by Roberts himself.)

Yet although their processes are flawed, people are beginning to recognise the need for such hearings in Britain. There currently exists a secretive process of judges appointing judges and there is no accountability either before or after appointment. Criticising the British practice, Michael Kirby, a former justice of Australia’s highest court, said that the public “has a legitimate interest in knowing more about the values of potential appointees.” He is right.

When I put that view to various of the justices quoted above, they were dismissive. Gone was their earlier enthusiasm for openness. “The idea that we expose ourselves to some kind of public examination would have a danger of simply unbalancing the appointment process,” Phillips said, adding that it would politicise the court and make appointments “subjective.” Lord Pannick QC, a leading barrister, favours “some form of public hearing in which the appointee can discuss with an appropriate committee of parliament the views that he or she may have.” Pannick suggested that the House of Lords Constitution Committee, on which he sits, could play a role.

From a democratic point of view, a Commons select committee might be preferable. But such hearings are unlikely to happen as long as people such as Phillips believe that they would lead “to the court being seen to divide on some issues on political lines.” Perhaps he is right. But whether he is or not, it does not obscure the fact that public accountability is more important than the justices’ fear of politicisation. For, surely, knowing so little about individuals who hold so much power over so many people is unacceptable in a modern democracy such as our own. We must know more.