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Introduction

Document Cited authorities 1 Cited in Related
AuthorFrederic Reynold
Pages13-15

INTRODUCTION

It is nearly four years since the Supreme Court of the United Kingdom replaced the obscurely located Appellate Committee of the House of Lords, and since the Lords of Appeal in Ordinary – the “Law Lords” – were transformed into Justices of the Supreme Court. There has been much discussion about what difference, if any, this change has brought about: in particular, whether disagreement occurs more frequently than was formerly the case. In fact the statistics show that up to May 2013, 26 per cent of Supreme Court decisions have been majority decisions, which happens to be a figure broadly in line with the decisions of the House of Lords Appellate Committee over the last 50 years of its existence. There is, however, an unmistakably sharper edge to the disagreement – horns are locked and arguments are met head on – previously it had frequently been the case that no reference was made at all to the judgments of one’s colleagues, let alone to their arguments.

The right to express dissent in the deciding of appeals at the highest level is taken for granted in common law countries, but even so it has attracted much high-blown academic theorising: the need for the judiciary to function democratically and transparently, and to reflect differing societal and democratic values, are the arguments most commonly advanced. (It has not been without its critics, however. Sir Rupert Cross, the late Vinerian Professor of English Law at Oxford, was one. He took the view that it created uncertainty and tended to undermine the authority of the decision in question.1) Most appeal judges would probably agree with the view of the retired Law Lord, Lord Nicholls of Birkenhead:

Dissenting judgments do more than attract passing interest. They are an important aspect of judicial freedom. They have no legal effect on the cases in which they are given, but they can have a practical effect. At best a dissenting

1R. Cross, ‘The Ratio Decidendi and a Plurality of Speeches in the House of Lords’ (1977)
93 Law Quarterly Review 378.

xiv Disagreement and Dissent in Judicial Decision-making

judgment may be so obviously right that the courts or Parliament soon steer the law along a better path.2

As far as the general public is concerned, they are surely a reassuring indication of an independent mind at work.

Whatever the pros and cons, it is historically the case that disagreement and...

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