We are living in a changed country. Our Constitution – the Great British Constitution – has been transformed. Parliamentary Sovereignty has been supplanted by the Separation of Powers (1). Did you notice? Can you feel it? Perhaps not. The transition from one system of government to the next passed like the transition from September to October. Quite literally, in fact, for on 1 October, the United Kingdom Supreme Court opened for business. Previously, the country’s highest court, the Appellate Committee of the House of Lords, sat within the Houses of Parliament, the Law Lords members of the Upper Chamber. Their Lordships now sit in the shadow of Parliament, in a neo-gothic building expensively refurbished for the occasion. The first advocate to address the Court is reported to have told the Justices that theirs had been ‘a short walk across Parliament Square but a giant leap for the judicial system’ (2).

Opinion is divided as to how great a leap. The Supreme Court remains, like its predecessor, the highest domestic appeal court for the UK in respect of civil cases, and for England, Wales and Northern Ireland in respect of criminal cases. Its functions from House of Lords do not substantially differ. When deciding upon the legality or applicability of legislation the Justices of the Supreme Court, like the Law Lords, cannot force the Government to overturn or amend legislation. They can merely shoot powerful, persuasive glances. The great change is that the Justices are no longer members of Parliament, but then the Law Lords were full-time Judges, who did not vote on legislation passed within the chamber.

Therefore reaction to the creation of the Supreme Court has fallen into two different, though not entirely distinct, types. Firstly, there are those who believe that the Supreme Court presents a grotesquely expensive cosmetic change, the short walk across Parliament Square coming in at an estimated cost of at least £58 million (3) (£50,000 of which was spent on designing the new logo (4)). Secondly, in what some may regard as merely cosmetics with bells on, there are those who believe the court’s creation is a symbolic change, representing the last, necessary, act in a long progression towards a fully independent Judiciary. It is a symbolic change as opposed to a simply cosmetic one for the fact that, as Justice Albie Sachs wrote in The Times on the Court’s opening day, ‘symbolism … signifies. It can only be to the good if the concept of the independence of the judiciary is reinforced’ (5).

The question arises, ‘reinforcing the concept of the judicial independence’ – is that it? Can the long-term effects of the change actually be put any higher than that? The only adequate answer to the question is in the form of the warning issued by Lord Neuberger, the one Law Lord who did not take the short walk across Parliament Square (rather, he strolled off in a different direction, to become Master of the Rolls, head of the Civil Justice system), that ‘the danger with a constitution like the British Constitution is that you muck about with it at your peril because you do not know what the consequences of any change will be’ (6).

For while there has been no great change in what the Law Lords do, there has been a change in the way they work. In their previous incarnation, the Judges sat in the cramped conditions of a committee room located somewhere within the labyrinthine corridors of the Houses of Parliament. While proceedings were open to the public, this was by all accounts only in the sense that an uber-fashionable band’s after-show party is open to everyone who was at the gig: first you need to know someone who knows someone who knows the time and place of the barely-advertised happening, and even then you need the confidence that your shoes are pointy and jeans skinny enough to brave the image of the raised eyebrows of this elite club being disturbed by your entrance.

In comparison, if all goes according to plan, hearings in the new Supreme Court will be like art on the forth plinth. Openness, transparency and accessibility to the public are the watch words of the new Court. It will be, in the words of its Chief Executive, ‘there to educate and inspire, as well as to adjudicate’ (7). And so the new Supreme Court building comprises glass walls and wide-open spaces. There is a public café, and an exhibition space; there is a press room, whereas previously the journalists were forced to operate from the Pret a Manger across the street (8). There is even – groundbreaking, this – disabled access at the front. Online, the Court has a new website, which is very snazzy indeed, featuring a wealth of background information about the Court, the building, and the judges (9). And then there is perhaps the single most ground-breaking change: cameras will be permitted within the Court. All proceedings will be filmed, with the potential for the recordings to be broadcast. In all other courts within the UK, recording by film or unsanctioned tape is prohibited.

It perhaps says something that the Court would choose its first appeal with one eye on the faces of the public (10). Her Majesty’s Treasury v. A & Others was, in the words of the human rights organisation Justice, a ‘test case for the rule of law’ (11). The case concerned alleged terrorists, not convicted in Court, whose assets were frozen by the Government by way of an Order in Council, a measure which effectively bypassed debate or vote in Parliament upon the provisions. As the case summary contained on the Court’s website has it, the questions for adjudication were as follows: -

(i) Whether the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 are unlawful because they seek to restrict fundamental human rights without the express authorisation of Parliament;
(ii) Whether the restriction of funds pursuant to the Orders interferes with rights pursuant to ECHR Arts 8 & Art 1 of the First Protocol, and in respect of G Art 6;
(iii) Whether the ambit of restrictive measures in the Orders is sufficiently certain;
(iv) Whether the lack of procedural measures to challenge the restrictive measures renders the scheme unlawful. (12)

In his opening address, Tim Owen QC, Counsel for the appellants, told the Court that the appeals raised,

’novel and important points of constitutional law concerning the ability of the Executive to make laws without the need for any form of Parliamentary debate or scrutiny … [and] questions, difficult questions, concerning the proper balance to be struck between the competing demands of national security in the context of the threats posed by terrorism and the respect our society affords to fundamental human rights, rights of procedural fairness and rights of access to the courts.’

But while the Supreme Court’s first-term opened with its most lip smacking, headline grabbing case, the public, who might very well have been interested in what went on, would not have found this constitutional moment covered. The Court had been thwarted.  Even on the 24-news channels, which have proven themselves ready and willing to pad out slow news days with hours of footage of unopening front-doors and empty airport runways, obtaining a glimpse of the proceedings was nigh on impossible. Could it – should it - really be that by the end of the first full working day of our new highest Court, the most substantive piece of coverage on TV or radio had been a three-minute item on BBC Radio 4’s PM programme, a third of which focused on an exchange between Baroness Hale, Lord Browne and Geoffrey Robertson QC about the Court’s new microphones not working?

In the end, it turned out we had to go overseas for some proper footage of proceedings. On 5th October, the United States’ C-Span network (C-Span 2, to be precise), broadcast a full half hour excerpt from Owen’s opening address (13). So it was that the historic words, ‘My Lords, may I then turn to open the appeal of AK & M?’ came through an American public service broadcaster to ostensibly American citizens. For the layman, what can be gleamed from the excerpt? Well, first off, we certainly now appear to have a courtroom befitting its stature. The neo-gothic interior has the curious effect of somehow imbuing proceedings with a whiff of Magna Carta. There is something compelling, too, in the juxtaposition of advocates dressed in gowns and horse-hair wigs arguing cases in a room of stone and oak, at desks adorned with flat screen computer monitors; it is almost a mural relaying The Great & Evolving Story of British Liberty.

The room retains the style of the previous committee room, in which advocates and judges sit on the same level, now several feet apart in facing concentric benches, as though attending an absurdly theatrical board meeting.  The architects have described the atmosphere sought – and from the looks of it, attained - as that of a ‘learned seminar’ (14). Indeed, what comes through most clearly is how calm and measured the hearing is. Voices are not raised, questions are politely put. The hearing – at least the 40-minutes of it on show on C-Span - presents a model of how we may wish important and difficult questions within a democracy to be examined, explored and adjudicated upon. Thankfully, while the name Supreme Court has been imported across the Atlantic, the conduct of proceedings has not, the United States Supreme Court’s hearings being bullish, ball swinging affairs in which advocates have scarcely the opportunity to clear their throats to begin before they are mauled by an onslaught of aggressive questioning from the Court. A happy feature of our Court is that time for oral argument is not limited to several hours, but several days. This has the effect that Judges are afforded the time to listen and tease out the threads of argument rather than simply giving them a short, sharp tug as though cleaning a path of weeds.

This approach to proceedings does however help explain why broadcasters have perhaps not been quick to leap upon the footage. Learned seminars do not make for the most rollicking televisual ride, particularly when argument is regularly punctuated by the echo through the chamber of papers shuffled and binders opened as Counsel signals that he now intends to take the Court to a document within, say, volume 4, tab 56 of the Court’s bundle of papers. Such moments are even less compelling when you yourself do not have to hand volume 4, tab 56, nor any knowledge of what exactly it contains. This absence of documents is frustrating to any interested member of the public, and incapacitating for any journalist trying to report upon the case. As the Guardian’s Afua Hirsch complained on an essential resource, the newly created (unofficial) UK Supreme Court blog (15), reporting on a court case without having seen the case papers is like ‘trying to follow a film having missed the first half. Oral argument follows skeleton arguments, key facts and legal points are set out in the statements of case’ (16).

Making such documents available online would be an invaluable, though not necessarily revolutionary, innovation. See, for example, the ongoing inquiry into the death of Baha Mousa, the 26 year-old beaten to death while in the custody of British troops in Iraq. Through its website (17), the inquiry provides an exemplar of an open, transparent and accessible tribunal, proffering information on everything from its terms of reference, to whether there are parking facilities for members of the public who wish to attend. Uploaded each day is a full transcript of that day’s proceedings together with PDFs of the key pieces of evidence.

For, like the subject of public inquiries, it is not as though Supreme Court hearings are simply of interest to the nerdiest of law students. The Supreme Court may be devoid of the soap opera drama of a trial, being concerned simply - simply! - with the application of the law on issues of constitutional significance. But then the process by which these decisions are reached is no less compelling than the goings-on within Parliament. The opportunity to pass an eye over a live-feed from Parliament, even if it is only a glance, is invaluable whatever the theoretical underpinning of our constitution. This should be no different with our courts, especially our Supreme Court. While it is unknown how much of the Court’s operating costs are allocated to providing for bandwidth, but it can hardly be too overwhelming a feat to stream proceedings through the Court’s website, as does Parliament (18).

Of course, not all cases will be of interest to the public (as opposed to being in the public interest) - could the name of the upcoming appeal ‘Gray’s Timber Products Limited v. Her Majesty’s Revenue and Customs’ moisten anyone’s palate? What matters is that some will be of supreme importance and should be of equal interest.

One such case is that of the former Guantanamo Bay detainee Binyam Mohamed. On 16 October two judges in the High Court issued the latest in a series of judgements in proceedings concerning an application for disclosure of documents comprising details of his alleged torture while held captive in Pakistan and Morocco (19). The question before the Court concerned whether several paragraphs in one of their earlier Judgements could be disclosed to the public. The paragraphs contain summaries of classified material that go towards the veracity of Mohamed’s claims. The paragraphs may well provide for the public crucial evidence that Binyam has been tortured. The Foreign Secretary opposes this disclosure for the proposed harm it may cause to our national security through the implications for intelligence sharing with the United States. On Friday, the Judges ruled that the paragraphs be made public.

Doing the rounds of the evening television studios, the Foreign Secretary announced that the Government would appeal the Judgement in the strongest terms. Is it an omen that this happened to be on the same day that the Supreme Court had its state opening? National Security v. Human Rights and Freedom of Information, through the prism of British complicity in torture: if this isn’t a matter of public significance, what is? Were the case to go all the way to the Supreme Court, it would be argued in the full glare of the public and media. By the time it got there, could it be that submissions and preliminary documentation would be available to download, and the argument viewable to anyone with an internet connection? The case, like innumerable future others, would certainly be one to watch. It is the great promise of the Supreme Court that we will be able to do just that.

Notes

1) This is the conclusion of Vernon Bogdanor, Professor of Politics & Government at the University of Oxford, and author of The New British Constitution, as expressed on Tristram Hunt’s documentary ‘The Separation of Powers’, broadcast on BBC Radio 3, 4 October 2009. 
2) Supreme Success, Standpoint, 2 October 2009
3) Q&A: UK Supreme Court, BBC News, 30 September 2009. Joshua Rozenberg cites the figure £77 million, including the costs of building a replacement Court for those proceedings that otherwise would have been taking place in the building. Britain’s new Supreme Court, TLS, 2 September 2009. As the BBC reports, the Ministry of Justice have estimated annual running costs as £13.5m.
4) Supreme Court emblems cost taxpayer £50k, Law Gazette, 10 September 2009
5) Nelson Mandela and Mahatma Gandhi were locked up in our court, by Justice Albie Sachs, The Times, 1 October 2009
6) Fear over UK Supreme Court impact, by Joshua Rozenberg, BBC News, 8 September 2009
7) Speech to Legal Week Litigation Forum, by Jenny Rowe, 17 September 2009 (PDF)
8) What will it be like to report on the Supreme Court?, by Afua Hirsch, UKSC blog, 2 October 2009
9) Supreme Court website
10) TV cameras to capture new era for law lord, The Times, 10 September 2009
11) First UK Supreme Court case ‘a test case for the rule of law’, Justice press release (PDF)
12) As enumerated in the case summary available on the Court website.
13) The broadcast was streamed, and is still available at the C-Span website. The footage is introduced by a ten minute interview with Joshua Rozenberg.
14) Five things about the Supreme Court, BBC News, 1 October 2009
15) UK Supreme Court blog
16) What will it be like to report on the Supreme Court?, by Afua Hirsch, UKSC blog, 2 October 2009. In his C-Span interview, Rozenberg commented that in the case of A & Others, obtaining documents from the lawyers had been particularly frustrated by the inclusion in the case-papers of the otherwise anonymous appellant’s identities. The anonymity of appellants is a particular feature of the Court’s first term. Geoffrey Robertson was there at the hearing representing a number of media outlets seeking to lift the anonymity orders in respect of the appellants. ‘The Court’s first term docket,’ he complained to the Justices, ‘reads like alphabet soup’. (One anonymity order was lifted, in respect of an appellant known as ‘G’ – now revealed to be a Mohammed Al-Ghabra. The maintenance of the anonymity orders in respect of the others, A, K, M, Q and HAY, was subject to a hearing scheduled for 22 October, where judgement was reserved.) Following A & Others, the Court was to hear a case concerning B (a child), followed by I (a child), and then (this one takes the biscuit) ‘R (on the application of A) v B’. In total, of the 15 appeals in the Supreme Court’s first term, almost half concern parties whose name the media are banned from reporting.
17) The Baha Mousa Public Inquiry website
18) Also available for streaming: cases before the Grand Chamber of the European Court of Human Rights, and the Supreme Court of Canada. In fact, cases from the final week of the Law Lords’ final sitting in July of this year were made available on the Parliament website, as the committee reverted to the old tradition of sitting in the Lords’ parliamentary chamber.
19) This Judgement, of Lord Justice Thomas and Mr Justice Lloyd Jones can be found here (PDF). The first Judgement in the case, setting out a background to the case, can be found here. A report on the latest Judgement, by Richard Norton-Taylor can be found on the Guardian.