A former Supreme Court justice says he regrets the unanimity in the prorogation caseby Simon Brown / May 28, 2020 / Leave a comment
I wrote some years ago an essay on dissenting judgments for an OUP publication to commemorate Alan Rodger, former Lord Advocate and Supreme Court justice. I am prompted to reference this because of its possible relevance to the recent unanimous decision of the 11 justices of the Supreme Court in Miller 2, the prorogation case.
The essay as a whole discusses in some detail the pros and cons of dissents in a variety of contexts including of course final appellate courts, and at one point I note that it was once said (by either Lord Wilberforce or Lord Ackner) that a member of the appellate committee of the House of Lords “dissents only when his exasperation at the sheer stupidity of his colleagues outweighs his own natural indolence.” More relevant for present purposes, however, is this passage, which follows on from my recognition that in the great majority of final appeals a dissent will have no sensible prospect of ever influencing the future development of the law:
Does that, however, mean that a dissent in such circumstances would constitute, as some would say, no more than a futile gesture and that it should therefore be discouraged? I would suggest not. On the contrary, there are many occasions when, as I would contend, however plain it may be that a dissent will no more influence the future development of the law than the outcome of the particular appeal before the court, a judge should nevertheless, assuming always that he or she is clear in his or her own mind that the majority’s view is wrong, give a reasoned judgment saying so.
In the administration of justice, it has been said, the most important single person in court is the defeated litigant. Generally, the terms of the majority judgment or judgments will make it plain that the losing party’s arguments have been fully heard and taken into account and will explain why they have nevertheless not prevailed. But that is not invariably so. And whether or not that is so, it seems to me that nothing is better calculated than a dissenting judgment to demonstrate beyond question that the losing side’s case has been properly understood and, indeed, recognised to have real force, force sufficient to persuade one member of the court at least that it was…