On September 5 2016, I gave a paper with Jake Rylatt (University of Cambridge) at a Society of Legal Scholars’ event at Jesus College, University of Oxford. We spoke about how the UK Supreme Court determines how many Justices sit in each case.
The paper was given as part of an ongoing project (also involving Dr Duncan Fairgrieve of the British Institute of International and Comparative Law) which investigates this topic. The project has engagement from leading counsel and UKSC Justices and staff.
The abstract for the paper was as follows:
The case of Keyu v Secretary of State for the Home Department provided the UK Supreme Court (UKSC) with a valuable opportunity to provide some much-needed clarity in the ongoing debate surrounding the nature and structure of the test for substantive judicial review in English law. Lord Neuberger gave a somewhat left field response to the question of whether proportionality is now available at common law: “[i]t would not be appropriate for a five-Justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms… if a proportionality challenge to the refusal to hold an inquiry would succeed, then it would be necessary to have this appeal… reargued before a panel of nine Justices.” This dictum, given its significance, places the question of UKSC panel-size back on the agenda. When this reason is added to others—e.g. its significance to litigants and their representatives—there is real cause for thorough examination of the issue of panel size in the UKSC. However, remarkably little time has been devoted to considering the issue. What contributions have been made, although valuable, are limited in scope, practical utility, or both. In this paper, we present a more thorough analysis of the present situation and offer potential blueprints for reform. We advance no preference for a particular blueprint but, instead, we advocate reform in this area generally.