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The Law Lords and Human Rights

Thomas Poolen and Sangeeta Shahnn

This article presents an empirical analysis of the impact of the Human Rights Act on the Houseof Lords. Drawing on a database of judgments from 1994 to 2007, changes in judgment-givingbehaviour are identied by charting patterns of agreement and dissent across dierent categoriesof case.Voting records are also examined in order to identify whether signicant dierences existbetween individual Law Lords in their approach to human rights cases.

INTRODUCTION

This article presents the ndings of a quantitative analysis of decision-making inthe Appellate Committee of the House of Lords (HL). It draws on a database ofHL judgments dating from 1 January 1994 to 31 December 2007 in order to iden-tify what impact, if any, the Human Rights Act (HRA) has had on decision-mak-ing within the UKs highest court. There has been a considerable amount ofscholarship devoted to the HRA over the last decade, but little sustained statisticalanalysis of judicial decision-making under the Act. This article, the second in aprojected series, aims to ll this lacuna. In so doing, it also provides a picture ofdecision-making within the HL in the years leading up to its transformation into

the Supreme Court.Our rst article, which analysed the caseload of the HL and the courts hand-

ling of petitions for leave to appeal, contained some signicant ndings.1 Caseswere coded into four categories, the precise contours of which are explainedbelow: human rights; rights-related; refugee and other. The statistics on case-load revealed a picture of a busier court, one that devoted a much higher percen-tage of its caseload to public law (including human rights) matters after the HRAcame into operation than before. The data on petitions revealed that this develop-ment was essentially a matter of choice, since the gures showed that the LawLords have been especially willing to grant leave to human rights cases post-

HRA. Interestingly, however, the statistics also revealed a very low win rate forhuman rights cases: fewer than one in three such cases were successful, comparedwith about one in two in rights-related cases.The most satisfactory explanation ofthese central ndings ^ the selection of more human rights cases combined withlow win rates in these cases ^ is that while the Law Lords may be keen on hearing

nLaw Department, London School of Economics.nnSchool of Law, University of Nottingham. The authors would like to thank Tom Hickman, BertHuang, Mark Lehain, and Vanessa Munro for their comments on earlier drafts. Thanks are owed toJohn Picton and Anna Medvinskaia for their research assistance.We would also like to acknowledge

both the British Academy and the London School of Economics, whose funding made the project ofwhich this article forms a part viable.

1 S. Shah and T. Poole,The Impact of the Human Rights Act on the House of Lords [2009] PL 347.

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human rights cases, they are not particularly sympathetic in general to humanrights claims.

This article peers beneath our earlier ndings, oering a richer survey of post-HRA decision-making in the HL. The article looks at what might be called noiselevels in HL judgments, specically by tracking the rates of dissents and concur-rences across the sample period (1994^2007) with a view to identifying any observa-ble trends.This approach is not only capable of providing a more complete picture ofpatterns of judging within the HL. It also allows us to identify whether the intro-duction of the HRA has led to any changes in the judgment-giving habits of theLaw Lords. The article also presents data on the judicial records of individual judgesacross the sample period, enabling us to establishwhether there have been substantialdierences among HL judges when deciding human rights cases.This information isnot only interesting in its own right ^ the HL was, after all, a body that exercisedconsiderable power ^ but it may also tell us something more general about the way anew human rights instrument operates in domestic supreme courts.

THE POLYPHONIC COMMON LAW, HUMAN RIGHTS AND THE

HOUSE OF LORDS

Dissenting and separate concurring opinions are integral features of the commonlaw.2 The common law is inherently polyphonic, having a tendency to speak inmany voices. The judicial HL embraced this noisy approach to judgment-delivery, allowing each Law Lord to issue an opinion on the case before them.To those unfamiliar with common law practice, there must be something odd

about the existence of individual opinions. By their nature, dissents (and to a les-ser extent separate concurrences) detract from the force of a judgment and therebycarry the potential to undercut the declaratory power of the legal statement issuedby the court. Recognising that public dissent has the capacity to undermine legalcertainty, French3 and German4 legal systems (and those inuenced by them)have generally required judicial deliberation to remain secret.5 Laws messageshould not be compromised by the idiosyncrasies of individual judges.6

2 J. Alder,Dissents in Courts of Last Resort: Tragic Choices? (2000) 20 OJLS 221.3 The tradition in France is very old, if not quite unbroken. In a decree of 1344, PhilippeVI imposed

secrecy during deliberation in courts and reminded the judge of the duty to keep to himself whathappened during deliberation.There was a brief hiatus after the French Revolution, when distrustof the courts by the masses led to the abandonment of secret deliberations for a time (1791^1795).

4 Absolute secrecy of judicial deliberation was the rule in pre-unication Prussia, although someGerman states did allow a written dissent to be added to the part of the court record not accessibleto the public. (This was the rule in Austria too.) TheWeimar Constitution forbade dissents in con-stitutional cases: eg Rules of the Constitutional Court of 20 September 1921,y8(2), [1921] R.G.Bl.1535. So too did the Bonn Constitution.

5 For comparative analysis see eg K. H. Nadelmann, The Judicial Dissent: Publication v Secrecy(1959) 8 American Journal of Comparative Law 417; M. Kirby, Judicial Dissent ^ Common Law andCivil LawTraditions (2007) 123 LQR 379.

6 Secrecy of judicial deliberation has also been valued in those systems in the past on account of theprotection it appears to oer judges from outside interference. According to Henri Francois

dAguesseau, Chancellor of France, writing in 1706, secrecy is the strength of the feeble and theguarantee of justice: Oeuvres comple'tes du Chancellier dAguesseau Vol I (Paris: Fantin, new ed, 1819)135, 142.


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Though the common law has for a long time accommodated dissents and con-currences, there has been some institutional variation, usually led by the judgesthemselves, between a preference for the corporate, composite judgment and thepractice of giving individual opinions. For instance, the great 18th century judge,Lord Manseld, introduced the habit of caucusing opinions as part of an attemptto reform the common law. The practice was dropped on his retirement from thebench. In more recent times, Munday has noted how the Court of Appeal hasmoved towards the adoption of composite judgments as standard: these judg-ments now account for almost half of the Courts civil caseload.7

Other common law jurisdictions have seen a similar tension between individual-ist and corporate conceptions of judging. In the US, John Marshall, Chief Justice ofthe Supreme Court in its formative period (1801^1835), made the announcement ofan opinion of the Court8 the standard practice of that Court.9 The move, designedto strengthen the power and dignity of the edgling court by impressing the coun-try with its unity, was received with consternation in some quarters. Thomas Jeer-

son, forone, hated the idea of a judicial opinionhuddled up in an enclave, perhaps bya majority of one, delivered as if unanimous, and with the silent acquiescence of lazyor timid associates, by a crafty chief judge.10 Marshalls approach outlived him, pro-ducing an institutional aversion to dissent:11 the right to dissent was exercised spar-ingly, reserved often only for important cases,12 and a norm of acquiescence ^ asopposed to consensus ^ dominated judicial practice until well into the 20th century.13

Later Supreme Court practice has often tended to favour a more individualist visionof the judicial role14 over the older, more corporate approach.15

7 R. Munday,All for One and One for All: The Rise to Prominence of the Composite Judgment

within the Civil Division of the Court of Appeal (2002) 61 CLJ 321, 330. It is general practice forthe Court of Appeal to issue a single judgment in criminal appeals.

8 It might be noted that the publication of seriatim opinions of the Law Lords was a practiceunknown to the American Bench and Bar at the time of independence.

9 K. M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Integration(1959) 44 Cornell Law Quarterly 186.

10 Letter toThomas Ritchie, 25 December 1820 (cited in ZoBell, ibid, 194).11 R. Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and

Decisionmaking in the Taft Court (2000^2001) 85 Minnesota Law Review 1267. Indeed, Canon 19of the American Bar Associations 1924 edition of the Canons of Judicial Ethics explicitly assertedthe norm against dissent: It is of high importance that judges constituting a court of last resortshould use eort and self-restraint to promote solidarity of conclusion and the consequent inu-

ence of judicial decision.12 See eg the beginning of Marshalls own dissent inBank of the United States v Dandridge 12 Wheat.64,90 (US 1827): I should now, as is my customwhen I have the misfortune to dier from this Court,acquiesce silently in its opinion did I not believe that the judgment of the Circuit Court of Virginiagave general surprise to the profession, and was generally condemned.

13 Post, n 11 above,1340.14 Oliver Wendell Holmes, whose posthumous reputation rests in part on his dissenting record, saw

opinion writing as the expression of the exuberance of personality (Letter to Sir Frederick Pol-lock, 6 February 1926 (cited in Post, ibid1292)). However, Holmes himself was, at least in principle,no great fan of dissents. On the contrary, he believed that [t]here are obvious limits of propriety tothe persistent expression of opinions that do not command the agreement of the Court. Ironically,this sentiment was expressed as part of Holmess dissent inFTCvBeech-Nut Packing Co 257 US 441,456 (1922).

15 Post points to the inuence of the JudiciaryAct 1925, conceived byTaft, which Post says produced arevolution in the practice of the Court. By giving the Supreme Court control over its own docket,thereby reducing the Courts caseload but heightening its discretion, the Act changed the Court

Thomas Poole and Sangeeta Shah

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Has there been any discernible change in the delivery of judgments by the HLsince the introduction of the HRA? Has the Act led tonoisier judgments? Theremay be good reason to expect to see such a trend. Human rights, according tosome, are too ill-dened to provide a sure guide to the court that applies them.16

Rights, they say, are inherently political and open to wide-ranging disagree-ment.17 Any given right is really the statement of a political conict pretendingto be a resolution of it.18 Those who hold this view have tended to predict that theHRA would usher in a brave new world19 ^ familiar discourse would breakdown triggering an era of judicial lawlessness characterised by widespread judi-cial disagreement.20 The text of the HRA does nothing to reduce the potential fordisagreement. Section 2 asks courts to take into accountthe jurisprudence of theEuropean Court of Human Rights. So, even when Strasbourg jurisprudenceprovides a clear answer, the domestic court need not follow it.21 Section 3, theActs central provision, introduces a new technique of interpreting statutes tomake sure that they comply with the ECHR. But its limits are ill-dened: judges

must apply this power so far as it is possible to do so. Section 4 gives courts thepower to issue a declaration of incompatibility against statutes that cannot beinterpreted in a manner compatible with the ECHR. But that power is discre-tionary ^ even if the courts identify a Convention-incompatible statute they arenot obliged to declare it incompatible. Reecting on provisions of this sort, somecommentators have predicted the rise of a textually relaxed and morally purpo-sive approach22 to judging likely to bring about a profound cultural changeamong the judiciary more generally.23

These observations ought to have particular relevance to decision-making in theHL. The HL typically dealt with the hardest cases and, as the UKs senior court, it

from a court of last resort, whose primary function was to correct errors arising in ordinary privatelitigation, to a constitutional tribunal that resolved public policy issues of national importance.Within a few decades of Tafts retirement, commentators were remarking on just how untypicalunanimous decisions had become. See eg B. Schwartz,The Supreme Court, Constitutional Revolutionin Retrospect (NewYork: The Ronald Press, 1957) 354.

16 See eg A.Tomkins, Our Republican Constitution (Oxford: Hart Publishing, 2005); D. Nicol,Law andPolitics after the Human Rights Act [2006] PL 722. Cf T. Bingham,The Rule of Law (2007) 66CLJ 67 76^77: There is not, after all, a standard of human rights universally agreed even amongcivilised nations . . . the outer edges of fundamental human rights are not clear-cut.

17 See J.Waldron, Law and Disagreement (Oxford: Oxford University Press, 1998); R. Bellamy, Political

Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: CambridgeUniversity Press, 2007).

18 J. A. G. Grith,The Political Constitution (1979) 42 MLR 1,14. See alsoT. Poole,Tilting atWind-mills? Truth and Illusion in The Political Constitution (2007) 70 MLR 250.

19 J. A. G. Grith,The Brave NewWorld of Sir John Laws (2000) 63 MLR 159; J. A. G. Grith,TheCommon Law and the Political Constitution (2001) 117 LQR 42.

20 Cf K. D. Ewing,The Futility of the Human Rights Act [2004] PL 829.21 See eg R v Horncastle [2009] UKSC 14, at [11] (Lord Phill ips): it is open to this court to decline to

follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give theStrasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue,so that there takes place what may prove to be a valuable dialogue between this court and the Stras-bourg Court.

22 T. Campbell,Incorporation through Interpretation in T. Campbell, K. D. Ewing and A. Tomkins

(eds), Sceptical Essay on Human Rights (Oxford: Oxford University Press, 2001) 87.23 M. Hunt,Human Rights Act and Legal Culture: The Judiciary and the Legal Profession (1999) 26

Journal of Law and Society 86.



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tended to nd itself at the sharp end of constitutional politics.24 If we assume thatmore disagreement between the judges should produce more dissenting and concur-ring opinions, we might expect on this hypothesis: (1) a higher incidence of dissentsand separate concurrences in the years after the HRA was introduced; and (2) ahigher incidence of dissents and separate concurrences in human rights cases (parti-cularly after the HRA came into force) than in other categories of case. This articleexamines whether these assumptions are supported by the empirical evidence.

METHODOLOGY

Although other studies have made use of quantitative techniques to analyse HLdecision-making,25 such work is uncommon within UK legal scholarship.26 Norhave scholars from other disciplines stepped into the breach: the HL ^ and, forthat matter, the entire court system ^ has received scant attention from British

political scientists.27

So much so that the political sociologist David Robertsonwrote that no jurimetrics [has] been done on the English House of Lords.28 Thatwas back in 1982, but little has changed since.29 There has been some work that hasused (as here) an analysis of rates of concurrence and dissent as a springboard forcomment on changing judgment styles. Such research appears only sporadically;and no-one has yet explored in a systematic way the impact of the HRA on HLdecision-making. There are some partial exceptions. Adlers article on dissents inthe HL was not quantitative, drew from a small sample of 18 cases, and appearedbefore the introduction of the HRA.30 Mundays more systematic study of civilcases in the Court of Appeal between 1999 -2001 produced two probing papers.31

Siems has recently produced a comprehensive statistical analysis comparing cita-tion patterns in the English Court of Appeal with those in the German Federal

24 See eg A. Le Sueur,The Judicial Review Debate: From Partnership to Friction (1996) 31 Govern-ment and Opposition 8.

25 See eg K. Blom-Cooper and G. Drewry,Final Appeal: A Study of the House of Lords in itsJudicial Capa-city (Oxford: Oxford University Press, 1972); A. Paterson, The Law Lords (London: Macmillan,1982); B. Dickson,The Lords of Appeal and their Work 1967^96 in B. Dickson and P. Carmichael(eds),The House of Lords: Its Parliamentary andJudicial Roles (Oxford: Hart Publishing,1998).

26 Cf W.T. Murphy and R.W. Rawlings,After the Ancien Regime: TheWriting of Judgments in theHouse of Lords 1979/1980 (1981) 44 MLR 617, which examined (by means of qualitative analysis)

all the speeches made in the HL during the 12 month period beginning from October 1979.27 A rare exception is David Robertson, a political sociologist working from a legal realist perspec-tive, whose work includes statistical analysis (derived from US jurimetrics) of the Law Lords judg-ments from the mid-1980s to the mid-1990s: see in particular hisJudicial Discretion in the House ofLords (Oxford: Clarendon Press,1998).

28 D. Robertson, Judicial Ideology in the House of Lords: A Jurimetric Analysis (1982) 12 BritishJournal of Political Science 1, 6.

29 G. Drewry, A Political Scientists Perspective in L. Blom-Cooper, B. Dickson and G. Drewry (eds),TheJudicial House of Lords 1876^2009 (Oxford: Oxford University Press, 2009) 439:very few politi-cal scientists in the UK . . . have taken the slightest interest in the judicial function of the House ofLords or indeed in most other aspects of law and legal institutions.

30 J. Adler,Dissents in Courts of Last Resort: Tragic Choices? (2000) 20 OJLS 221.31 R. Munday,All for One and One for All The Rise to Prominence of the Composite Judgment

within the Civil Division of the Court of Appeal (2002) 61 CLJ 321; R. Munday,Judicial Cong-urations: Permutations of the Court and Properties of Judgment (2002) 61 CLJ 612. See also G.Drewry, L. Blom-Cooper and C. Blake,The Court of Appeal (Oxford: Hart Publishing, 2007).




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Supreme Court; the paper also examines cross-citations between the highestcourts within the UK.32 Surveys by Feldman and Dickson of decision-makingin the HL,33 while more relevant in that they also explore HRA-related themes,are neither systematic nor quantitative.34

Given the paucity of relevant domestic examples, we turned to foreign sourcesfor guidance on questions of method. Quantitative analysis of dissent and concur-rence rates within the US Supreme Court is an important part of the Harvard LawReview statistics.35 The Review has published statistical tables tracking the businessof the Court since 1949. These now appear annually.36 The tables include data onvoting patterns within the Supreme Court and breakdowns of voting alignmentsand the formation of majorities in divisive cases. The root insight on which thisanalysis is based ^ one that also fuels the present study ^ is that focusing on non-unanimous cases may provide a more accurate picture of how the Justices vote indivisive cases.37 The methodology pursued in the Harvard statistics is based on thefollowing propositions (which we will call the Harvard rules): (a) a concurrence

or dissent is recorded as a written opinion whenever a reason, however brief, isgiven; (b) a Justice is considered to have dissented when he or she voted to disposeof the case in any manner dierent from that of the majority of the Court; (c)plurality opinions that announce the judgment of the Court are counted as opi-nions of the Court; (d) opinions concurring in part and dissenting in part arecounted as dissents.38

But important dierences between the HL and the US Supreme Courtmake the wholesale adoption of the Harvard rules in the present study proble-matic. The HL adopted a seriatim approach to judgment giving. This approach,traditional within common law jurisdictions,39 involves each judge giving a

32 M. M. Siems,Citation Patterns of the German Federal Supreme Court and the Court of Appeal ofEngland andWales (2010) 21 Kings LawJournal 152.

33 D. Feldman,Human Rights in Blom-Cooper, Dickson and Drewry,TheJudicial House of Lords n 29above, 541; B. Dickson, Safe in Their Hands? Britains Law Lords and Human Rights (2006) 26Legal Studies 329. See also B. Dickson,The Processing of Appeals in the House of Lords (2007) 123LQR 571; B. Dickson,The Lords of Appeal and their Work 1967^96 in B. Dickson and P. Carmi-chael,The House of Lords: Its Parliamentary andJudicial Roles n 25 above.

34 The Canadian political scientist Janet Hiebert has done some signicant (qualitative) work on theimpact of the HRA, but this has not so far concentrated on the courts: see Parliamentary Bills ofRights: An Alternative Model? (2006) 69 MLR 7; Parliament and the Human Rights Act: Can the

JCHR Help Facilitate a Culture of Rights? (2006) 4 International Journal of Constitutional Law 1;Interpreting a Bill of Rights:The Importance of Legislative Rights Review (2005) 35BritishJour-nal of Political Science 235.

35 For a recent example see The Statistics (2008) 122 Harvard Law Review 516.36 For a full account of the Harvard Law Review method see The Statistics (2005) 119 Harvard Law

Review 415.37 ibid, 416.38 See, eg,The Statistics (1988) 102 Harvard Law Review 143, 350^351.39 Note, however, the anomaly of the Judicial Committee of the Privy Council, which operated until

recently under a procedure whereby only the judgment of the Privy Council was published. ByOrder of Privy Council (1627), it was provided that When the business is to be carried according tothe most voices, no publication is afterwards to be made by any man, how the particular voices andopinions went. Exceptions to this practice of single advice can be found in the19th century, but the

old rule was re-imposed in 1878. Despite an agreement at the Imperial Conference of 1911 to allowpublic dissent, that step was not taken until 1966 (following pressure from Australian judges).Recent practice has gone further: eg the two concurrences in Christian v The Queen Appeal No



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speech outlining his/her opinion on the case in turn ^ a factor underpinningwhat Blom-Cooper calls the distinctive individualism of the English judge.40

(Although the HL did sometimes dispose of cases by means of a consideredopinion of the Committee, a method favoured by the retired Senior LawLord, Lord Bingham.41) By contrast, the US opts for what Justice Ginsburg callsamiddle way between the classic common law approach and the civil law proto-type of a single anonymous judgment with no public dissent ^ generally an opi-nion of the court, from which individual judges sometimes disassociatethemselves in varying degrees.42 The existence of an opinion for the Courtmakes the identication of concurring and dissenting judgments a straightfor-ward task,43 since in that context a concurrence or dissent is separate because itrepresents a breaking away from the central judgment which reects the viewsof a majority of judges.

This dierence in judgment delivery means that certain adjustments to theHarvard rules are required before they can be applied to the HL. Lynch has done

valuable statistical work on the High Court of Australia, which also adopts a ser-iatim approach to judgment-giving.44 Our study generally follows Lynchs mod-ication of the Harvard rules, with one important qualication concerningopinions in which a judge does no more than indicate his/her agreement withthe (fuller) opinion of another (what we call I concur opinions).Whereas Lynchcounts each separate statement from a judge ^ evenI concur opinions ^ as being aseparate opinion, we have adopted the approach of the Harvard rules on thisscore, which counts I concur opinions as de facto co-authorship with anotherjudges opinion. This approach is not only a more accurate reection of what isreally going on in the judgments,45 it also prevents an overestimation of the

amount of judicial noise in HL cases.Thus, our method, which is in eect a modication of the Harvard rules to t

the HL context, deploys the following three-part classication. Judgments of theHouse of Lords are composed ofopinions from each of the Lordships sitting on acase. An opinion is classied as unanimous where a judge agrees on the majorityoutcome without giving reasons (I concur opinions). An opinion is classied as aconcurrence where the judge gives a separate opinion which concurs with the out-

109/2005 (30 October 2006). The members of the Committee write separate opinions when they

hear devolution cases.40 L. Blom-Cooper,Style of Judgments in Blom-Cooper, Dickson and Drewry,TheJudicial House ofLords n 29 above,145.

41 Eg Rv Kennedy [2007] UKHL 38. See also B. Dickson,A Hard Act to Follow:The Bingham Court,2000^8 in Blom-Cooper, Dickson and Drewry,TheJudicial House of Lords ibid261.

42 Justice R. B. Ginsburg,Remarks on Writing Separately (1990) 65 Washington Law Review 133,134.43 Although not always: a classic case in point isRegentsof the Universityof CaliforniavBakke 438 US 265

(1978), a landmark decision of the Supreme Court on armative action.44 See A. Lynch,Dissent: towards a Methodology for Measuring Judicial Disagreement in the High

Court of Australia (2002) 23 Sydney Law Review 470. See also A. Lynch, Does the High CourtDisagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981^2003 (2005) 33 Federal Law Review 485. Cf R. Smyth,Some are More Equal than Others ^ AnEmpirical Investigation into the Voting Behaviour of the Mason Court (1999) 6 Canberra Law

Review 193; A. R. Blackshield, Quantitative Analysis: The High Court of Australia, 1964^1969(1972) 3 Lawasia 1.

45 See B. Dickson,The Processing of Appeals in the House of Lords n 33 above, 595^596.




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come determined by the majority.46 Finally, an opinion is classied as a dissentwhen it disagrees with the outcome of the case as decided by the majority. Dissentis disagreement as to orders, not simply an individual expression of reasons.47 Aswe are not only interested in the habits of individual judges, but also the House ofLords as a whole, we also classied each of the judgments delivered by the court.Judgments were coded as unanimous where one judge gave a lead opinion withwhich the other judges agreed without comment.48 Those judgments that con-tained at least one separate concurring opinion to the lead opinion were classiedas unanimous by concurrence, whilst those judgments in which a majority wonover at least one dissenting opinion were coded as majority over dissent.

The database of judgments (and the opinions which they comprise) handeddown between 1 January 1994 and 31 December 2007 was sourced for the mostpart from the ocial House of Lords website.49 Since that website contains judg-ments from mid-November 1996, theWeekly Law Reports was used as the primarysource for the preceding period. All the cases were classied according to the

scheme set out above, and sorted into the following categories: human rights;rights-related and other.A human rights case was one that involved discussion of a human right protected

by the HRA, an international treaty or customary international human rights law.Cases were included in this category if the right was discussed by at least one judge.The category also includes those cases in which the human rights issue was only aminor point or incidental to the central questions in the case. So, where the rightsissue was only one question among many,50 or only addressed in one judges opi-nion, the case was classied as a human rights case. A rights-relatedcase refers to casesthat raise civil liberties or equality issues in which there was no mention of human

rights in any of the judgments.We went beyond a minimalist understanding ofcivil liberties as political freedoms that relate directly to the principle of represen-tative, or democratic government51 to include police powers,52 detention,53 fairtrial54 and criminal justice issues.55 The othercategory includes all those cases thatdid not fall into the human rights or rights-related categories.56

46 Where a judgment arrives at the same result as the majority opinions, but does so by a dierentroute, it will be classied as a concurrence.

47 Lynch, n 44 above, 479. So, Lord Homanns speech inA v Secretary of State of the Home Department[2004] UKHL 56 counts as a separate concurring opinion and not a dissent because even though he

disagreed with most of the majoritys reasoning he agreed with the outcome that they reached.48 Generally, such agreement is expressed in the following terms: I have had the privilege of reading

in draft the opinion of Lord/Baroness X, and I am in full agreement, and I would dispose of theappeal in the way in which Lord/Baroness X proposes.

49 Judgments are available at: http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm (last vis-ited 10 August 2010).

50 See, eg, JA Pye (Oxford) Ltd and Anotherv Graham and Another[2001] 2 WLR 1293.51 See C. Gearty, Civil Liberties (Oxford: Oxford University Press, 2007) 3.Political freedoms in this

context includes inter alia freedom of expression, assembly and association and the right to vote.52 See, eg, Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NI 237.53 See, eg, McGrath v Chief Constable of the Royal Ulster Constabulary [2000] NI 56.54 See, eg, Rv Brown [1994] 1 WLR 1599.55 See, eg, RvJohnson (Jason Everton) [2007] EWCA Crim 1651.

56 The refugee category that featured in our previous article ^ essentially those cases concerned withrefugees and asylum seekers ^ was dropped from the present study. Our aim in the rst piece was totest the claim, prevalent in certain quarters, that a high percentage of HRA cases involve such mat-



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In practice, of course, cases do not come neatly packaged as either humanrights or rights-related. A principle of selection had to be developed to takeaccount of this fact, since cases had to be coded as either one or the other. So,where a case gave rise to both human rights and rights-related arguments, it wasclassied as a human rights case.While this approach represents a pragmatic (andreasonable) solution to an intractable problem, we recognise that it might possiblylead to the over-accentuation of the importance of human rights in the caseload ofthe HL. But, as decision-making in human rights cases is the primary concern ofthe article, it would be a greater sin to run the risk of under-counting such cases.57

UNANIMITY, CONCURRENCES AND DISSENTS: ALL CASES

We looked rst at the rates of dissents and concurrences across the sample period,deploying the categorisation just outlined. Note that it is judgments rather than

individual opinions that are counted here since we are interested at this point inthe decision-making of the HL as a collective.We then broke down the unani-mous judgments,unanimous by concurrence judgments and majority over dis-sent judgments by class of case (human rights,rights-related, and other).

The breakdown of all the cases decided by the HL in the sample period prior tothe HRA coming into force (pre-HRA) is presented in Table 1. Of the total of344 pre-HRA judgments, 43 per cent were delivered by a single judge with therest of the committee merely registering their agreement (unanimous). 35 percent of cases were unanimous as to the result, but contained concurring opinions.22 per cent of cases contained at least one dissenting opinion.

The same breakdown of the cases decided after the HRA came into force(post-HRA) is presented in Table 2. 453 judgments were delivered in this secondperiod, of which 19 per cent were unanimous, 60 per cent decided by concurrence,and 21 per cent involved at least one dissent.

The dierence between the two periods is immediately apparent. Unanimousjudgments fell from 43 per cent to 19 per cent. The hypothesis we examined pre-dicted a greater number of unanimous byconcurrence judgments and moremajor-ity over dissent judgments in the post-HRA era.While there has certainly been anappreciable increase in unanimous by concurrence judgments (from 30 per cent to65 per cent), there has been no such change in the rate of majority over dissent judg-

ments (22 per cent in the pre-HRA period, 21 per cent in the post-HRA period).58

ters. (We found the claim to be ungrounded. Only 9 of 132 post-HRA human rights cases involvedasylum or immigration matters.) The category adds nothing to the present inquiry; so refugeejudgments were recoded, according to the arguments contained within them, as either humanrights or rights-related cases.

57 The statistical signicance of the data has been included where appropriate. However, where thedata does not lend itself to such testing, eg where the sample sizes are too small, or the use of suchmethods is not useful, this has not been calculated.

58 The critical value below which we can say with 99.9% certainty that there has been a signicantdecline is 79. As the number of judgments delivered as majority over dissents post-HRA is 93, wecan conclude that this decline is not signicant at the 0.001 level.




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This rise in unanimous by concurrence judgments did not occur gradually: there is anoticeablestep-change in such judgments in 2000, the year in which the HRA cameinto force. This new state of aairs did not alter signicantly over the rest of theperiod.We have also presented these ndings in graphic form (Figure 1), where thetrends can be seen more clearly.

These ndings support the hypothesis that judicial noise would increaseafter the HRA came into force,59 but they do not by themselves show that thechange in judgment-giving behaviour results directly from the introductionof the HRA. Another factor that might have produced these results was the

change in HL personnel that occurred about this time, and particularly theappointment of Lord Bingham as Senior Law Lord in 2000. Commentatorshave remarked on the extent of Lord Binghams inuence on the HL.60 Itmight be that the combination of a number of factors produced the changes in

Table 1: All Pre-HRA Cases

UnanimousUnanimous by

concurrenceMajority over

dissentTotal no. of

Cases

Pre-HRA 2000 16 (31%) 21 (40%) 15 (29%) 521999 15 (29%) 25 (48%) 12 (23%) 52

1998 20 (39%) 20 (39%) 11 (22%) 511997 25 (44%) 21 (37%) 11 (19%) 571996 22 (54%) 14 (34%) 5 (12%) 411995 28 (60%) 9 (19%) 10 (21%) 471994 23 (52%) 11 (25%) 10 (23%) 44Total 149 (43%) 121 (35%) 74 (22%) 344

Table 2: All Post-HRA Cases

Unanimous

Unanimous by

concurrence

Majority over

dissent

Total no. of

Cases

2007 15 (26%) 26 (45%) 17 (29%) 582006 9 (16%) 39 (68%) 9 (16%) 572005 13 (18%) 45 (61%) 16 (22%) 742004 14 (25%) 31 (55%) 11 (20%) 562003 12 (17%) 42 (61%) 15 (22%) 692002 6 (12%) 35 (69%) 10 (20%) 512001 13 (19%) 48 (69%) 9 (13%) 70Post-HRA 2000 4 (22%) 8 (45%) 6 (33%) 18Totals 86 (19%) 274 (60%) 93 (21%) 453

59 Our null hypothesis was that the number of unanimous judgments would not change signicantlyafter the HRA came into force (ie that it would remain around 43%). The critical value belowwhich we can reject the null hypothesis with 99.9% certainty is 161 (out of the total of 453 judg-ments delivered by the House of Lords in the post-HRA period). Given that only 86 judgmentswere delivered unanimously post-HRA, at the 0.001 level there has been a signicant fall in the

number of judgments delivered this way.60 See eg M. Andenas and D. Fairgrieve (eds),Tom Bingham and theTransformation of the Law: A Liber

Amicorum (Oxford: Oxford University Press, 2009).



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patterns of judgment delivery observed here. A position that puts great weight onthe direct inuence of Lord Bingham should, however, be treated withcaution. Seeking to bring clarity to HL decision-making, Lord Bingham intro-

duced the use of aconsidered opinion of the committee where the HL spoke withone voice.61 Our ndings show a trend that goes in precisely the opposite direc-tion ^ that is, away from unanimity, and toward greater use of the separate con-curring opinion.

UNANIMITY, CONCURRENCES, AND DISSENTS:

BY TYPE OF CASE

The breakdown of the overall caseload of the HL produced interesting results,notably a marked increase in unanimous by concurrence judgments from the timethe HRA came into force. But we need to determine whether this rise is directlycaused by the HRA. If that were the case, we would expect to see a more signi-cant increase in the rate of concurrences in human rights cases than in other types

unanimous

unanimous by

concurrence

majority over dissent

0

10

20

30

40

50

60

70

80

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

PercentageofJudgm

ents

Year

Figure1: All House of Lords Cases (Pre- and Post-HRA)

61 B. Hale,A Supreme Judicial Leader in Andenas and Fairgrieve,ibid209: But although [Lord Bing-hams] view is hugely inuential, he has never sought to dissuade others from expressing theirs.Under his leadership, there has never been any question of discouraging dissent or encouraging asingle majority judgment. But in suitable cases where the decision is unanimous, he has encouraged

resort to the device of a single report from the appellate committee rather than a series of separatespeeches, even if in the usual polite formula. The rst considered opinion of the committeewasin Rv Forbes [2001] UKHL 40.




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of case. In addition, if the hypothesis we are examining is correct, we might alsoexpect an above-average rate ofdissents in human rights cases.

To discover whether this was the case, we broke down the unanimous, concur-rent and dissenting judgments bycase type (human rights,rights-related,other).The results are represented in Figure 2.The statistics appear to indicate that the risein concurring opinions since 2000, although perhaps a little more marked inhuman rights cases, seems to be a feature common to other types of case.

To conrm whether or not this impression was correct, we turned the rawnumbers of unanimous decisions, concurrences and dissents into percentages bytype of case.The breakdown of human rights cases is summarised inTable 3.Thesedata indicate some interesting trends.There is no signicant change in the propor-tion of human rights cases in which unanimous judgments were given ^ 15 percent of pre-HRA human rights cases and 16 per cent of post-HRA human rightscases62 were decided in this way (although we should note that the numbers ofpre-HRA human rights cases is small).63 By contrast, there has been a noticeableincrease in human rights judgments that were unanimous by concurrence, risingfrom 46 per cent before the HRA came into force to 61 per cent post-HRA.There

has been a decline in the dissent rate in such cases since 2000 ^ from 38 per centbefore the HRA to 22 per cent post-HRA. These gures match very closely thebreakdown of the overall caseload of the HL (19 per cent unanimous; 60 per centconcurrence; 21 per cent dissent post-HRA). The statistics suggest, then, that the

30

40

50

60

0

10

20

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

NumberofUnanimousbyC

oncurrenceJudgments

Year

human rights rights-related other total

Figure 2: Number of Unanimous by Concurrence Judgments (by case type)

62 Seven of these were considered opinions of the Committee:Huang v Secretary of State for the HomeDepartment [2007] UKHL 11; Rv Her Majestys Coroner for theWestern District of Somerset, ex parte Mid-dleton [2004] UKHL 10; Rv Her Majestys Coroner for the County ofWestYorkshire, ex parte Sacker[2004]UKHL 11; Rv H[2004] UKHL 3; Rv Drew [2003] UKHL 25;Lawal v Northern Spirit [2003] UKHL35; and Rv Forbes [2001] UKHL 40.

63 The critical value above which we can say with 99.9% certainty that there has been a signicantincrease is 35. As the actual number of human rights cases decided unanimously was 22, there wasno signicant increase at the 0.001 level.



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HL shifted in the study period towards delivering more judgments in humanrights cases as unanimous by concurrence rather than majority over dissent. Post-HRA, the HL became noisier in human rights cases. But this increase in noisewas the result not of more dissent ^ since dissent rates actually fell ^ but of anincrease in separate concurring opinions.

Analysis of the data for rights-related cases (set out in Table 4) reveals a sharprise in the incidence of unanimous by concurrence judgments (from 35 per centpre-HRAto 67 per cent post-HRA).There was no signicant change in the num-ber of unanimous judgments.64 The dissent rate declined rather more signicantly

Table 3: Human Rights Cases

Unanimous (%) Unanimous by concurrence (%) Majority over Dissent (%)

2007 11 33 562006 0 85 152005 17 60 23

2004 30 40 302003 19 71 102002 7 86 72001 14 72 14Post-HRA 2000 67 33 0Pre-HRA 2000 0 100 01999 0 33 671998 0 0 1001997 100 0 01996 50 50 01995 0 0 01994 0 0 0

Table 4: Rights-related cases

Unanimous (%) Unanimous by concurrence (%) Majority over dissent (%)

2007 80 20 02006 22 67 112005 25 42 332004 0 86 142003 14 71 142002 0 80 202001 0 100 0Post-HRA 2000 0 100 0Pre-HRA 2000 25 33 421999 18 55 271998 38 25 381997 43 14 431996 20 40 401995 60 40 01994 43 29 29

64 At a 99.9% condence level, the critical value for a signicant decline is 8. As the mean number ofunanimous judgments post-HRAwas 10, there is no signicant change at the 0.001 level.




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in this category of case: 33 per cent of rights-related cases decided pre-HRAinvolved a dissent; and only 15 per cent in such cases post-HRA.

Rights-related cases only constitute a small percentage of the HLs caseload,particularly in the years after the HRA came into operation. The other casesdecided by the court are therefore more pertinent for our purposes. The detailedbreakdown of this category of case is provided inTable 5. Does it reveal a dierentpattern from the one observed in human rights cases? The answer appears to be aqualied yes. Post-HRA, 20 per cent of other cases were decided unanimously,59 per cent by concurrence, and 21 per cent involved at least one dissent. There hasbeen a signicant decline in unanimous judgments in other cases (47 per cent ofthese cases were decided unanimously pre-HRA), compared to no signicantchange in human rights cases. Data for the other category shows a similar rise inunanimous by concurrence judgments (from 35 per cent to 59 per cent) to thatseen in human rights cases.There was no signicant change in dissent rates post-HRA in other cases.65

The breakdown of judgments by category of case complicates the picturerevealed by the analysis of the overall caseload. The data indicate that the sharp

rise in unanimous by concurrence judgments after the HRA came into force can-not be ascribed solely (or indeed mainly) to human rights cases. They show,rather, that this phenomenon was common to all types of cases. The rise in unan-imous by concurrence judgments in human rights cases is no greater than thatseen in rights-related or other cases.66 The gures leave us with a counterintuitive

Table 5: Other cases

Unanimous (%) Unanimous by concurrence (%) Majority over dissent (%)

2007 26 54 202006 20 63 172005 16 69 16

2004 28 59 142003 17 54 292002 16 58 262001 22 63 14Post-HRA 2000 17 33 50Pre-HRA 2000 35 38 271999 37 49 141998 40 43 171997 43 41 161996 59 32 91995 60 17 241994 54 24 22

65 The critical value above which we can say with 99.9% certainty that the rise in majority over dissentjudgments would be signicant is 69. As the number of post-HRA majority over dissent judg-ments was only 55, the rise is not signicant at the 0.001 level.

66 Our null hypothesis was that the number of unanimous by concurrence judgments would be the

same for human rights cases asother cases after the HRA came into force (ie that the probability ofsuch a judgment would be 0.61). The critical value below which we can reject the null hypothesiswith 99.9% certainty is135 (out of the total of 264 human rights judgments delivered by the House



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nding. The incidence of unanimous judgments fell inother cases, but remainedconstant in human rights and rights-related cases. Dissent rates remained fairlyconstant in other cases, but fell in human rights and rights-related cases. If wecount the human rights and rights-related categories as together constituting thepublic law dimension of the HLs caseload, it would appear that there is not morebut less outright disagreement in public law cases than other types of case.

COLLECTIVE DECISION-MAKING IN THE HOUSE OF LORDS

Tracking rates of dissents and concurrences in all cases heard by the HL in thesample period shows no substantial change in the dissent rate ^ the percentage ofdecisions containing at least one dissent hovered at around 20 per cent. It didreveal, though, a very substantial increase in concurrent judgments and a corre-sponding decline in the numbers of unanimous decisions, a trend that coincidedwith the HRA coming into operation.

The breakdown by case category revealed some dierences in the way the HLhandled human rights cases and other types of case. Post-HRA, human rightscases, rights-related cases and other cases all exhibited a signicant increase inunanimous by concurrence judgments in 2000/2001 which was then basicallymaintained over the rest of the period. However, there was no concomitant fallin unanimous judgments in human rights or rights-related cases. Instead, theincrease was accompanied by a decrease in majority over dissent judgments.Thistrend was reversed for other cases, where dissent rates remained the same,

whereas the incidence of unanimous judgments fell post-HRA.What do these ndings tell us about the hypothesis outlined earlier, according towhich human rights are subject to above-normal levels of disagreement? Those whohold this position would expect to see more dissents and concurrences in the HRAperiod, and more dissents and concurrences in human rights cases than other cases.Our analysis does show an increase in concurrences at the relevant time; but it alsoreveals that there has been a signicant decline in dissent rates in human rights cases.The statistics provide no support, then, for the thesis that cases decided under theHRA are especially prone to inducing disagreement. Human rights cases have notfractured the court. If anything, the Law Lords seem to have clubbed together in

human rights cases.67

Perhaps a defensive strategy was adopted in these cases after theHRA came into force. It may have been thought that presenting a (relatively) unitedfront would prevent the wrong sort of attention being focused on decision-making inwhat was always going to be a novel and contentious aspect of the HLs business.

The increase in unanimous by concurrence judgments in all cases in 2000onwards also needs to be explained. What we see in the post-HRA era is a farnoisier court. Judges appear keen to have their say in matters across the whole

of Lords in the post-HRA period). Given that 155 human rights judgments were delivered unan-imously by concurrence post-HRA, at the 0.001 level there is no signicant dierence between

human rights and other cases in the rate of such judgments.67 Our ndings in this respect suggest that the House of Lords has not chosen to follow the Court of

Appeals path ^ at least as revealed in Mundays study ^ towards delivering unanimous decisions.




16/27

range of judicial business. There may well be other reasons for this increase ^changes in judicial personnel, for instance, or the introduction of judicialassistants68 ^ but it is unwise to discount the impact of the HRA. After all, thedata show that the relevant change occurred at the time the HRA came into force.It is at least plausible to suggest, on the basis of our ndings, that the HRA mighthave acted as a kind of trigger, encouraging the HL to understand its role in aslightly dierent manner. Instead of exercising a direct inuence on decision-making through its impact on the (growing) human rights element of the HLscaseload, our ndings suggest a reading in which the HRA exerted an indirect,but still far-reaching, inuence on the institutional self-understanding of the HL.Judges in the post-HRA era began to behave more in the manner more typical ofUS Supreme Court Justices, taking every opportunity ^ and not just in humanrights cases ^ to make individual statements about the development of the law.

INDIVIDUAL DECISION-MAKING IN THE HOUSE OF LORDS

Probing deeper into the judgment-giving behaviour of the HL, the decision-making of the individual members of the court was examined next.We lookedrst at the workload of every judge who sat on the HL during the sample period,the aim being to identify any signicant dierences in the number of humanrights cases determined by dierent judges, and to identify any repeat players.Second, we looked to see whether there was signicant variation in the deliveryof opinions by individual judges, observing how often each issued unanimous,concurring and dissenting opinions. Third, we examined the voting record ofindividual judges in human rights cases: how often did each judge decide in

favour of a human rights win? Finally, we identied the extent to which eachjudge agreed with his or her fellow judges in order to see whether there existedany intra-court groupings or coalitions in human rights cases.

Our aims remain modest.We do not attempt to trace the impact an individualjudge may have had on doctrinal development, let alone on the political life of thecountry. Rather we seek to identify which HL judges were signicant ^ and per-haps even inuential69^ voices in human rights cases and, in so doing, to tease outany dierences that exist between the judges when it comes to deciding thosecases. As we are concerned here only with decision-making in human rights casesand the number of such cases pre-HRA is small, this section of the article will

interrogate data from the post-HRA period of our study only.

WHO DECIDED WHAT?

Law Lords were assigned to particular cases by the Head of the Judicial Oce,Senior Law Lord and Second Senior Law Lord, taking into account the area of

68 The post-HRA period saw the introduction of judicial assistants to the House of Lords. Fourassistants aided the work of the House of Lords, including conducting research in connection withappeals and this assistance might have stimulated opinion writing. See Dickson,The Processing of

Appeals in the House of Lords n 33 above, 577.69 On the complexity of the idea of inuence in this context see eg N. Duxbury,Jurists andJudges: An

Essay on Inuence (Oxford: Hart Publishing, 2001) ch 2.



(2011) 74(1) 79^105


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expertise of each judge.70 It is possible, and perhaps even likely, that some judgesheard signicantly more human rights cases than others. Given that there wereonly 132 post-HRA human rights cases in the sample period, repeat players ofthis kind will have had more opportunity to exert inuence in human rights cases

than judges who sat on fewer such cases.The breakdown of the post-HRAworkload of individual judges is reproducedin Table 6. The gures reveal marked dierences in the number of human rightscases heard by dierent judges. Some judges handled many more human rightscases than others. Lord Walker, for instance, heard more cases in total (135) thanBaroness Hale (112) during the post-HRA period; but the latter sat on nearlytwice the number of human rights cases than the former (54 as opposed to 28).Lord Bingham stands out with an enormous 85 human rights cases. He sat on 65per cent of all human rights cases heard by the House of Lords during the post-HRA period of the study. Four judges heard over 50 human rights cases post-

Table 6: Post-HRAWorkload of Individual Judges

Human Rights Rights-Related Other Total

Bingham 85 (41%) 28 (14%) 93 (45%) 206Hope 59 (29%) 30 (15%) 117 (57%) 206Rodger 55 (33%) 30 (18%) 86 (51%) 169

Hale 54 (48%) 19 (17%) 39 (35%) 112Steyn 48 (29%) 25 (15%) 93 (56%) 166Nicholls 47 (26%) 20 (11%) 113 (63%) 180Scott 47 (27%) 14 (8%) 110 (64%) 171Carswell 44 (48%) 16 (17%) 32 (35%) 92Homann 43 (22%) 13 (7%) 142 (72%) 198Brown 41 (38%) 15 (14%) 51 (48%) 107Hutton 39 (40%) 12 (12%) 47 (48%) 98Walker 28 (21%) 10 (7%) 97 (72%) 135Hobhouse 18 (21%) 7 (8%) 60 (71%) 85Slynn 15 (26%) 6 (11%) 36 (63%) 57Millett 12 (16%) 7 (9%) 58 (75%) 77

Mance 10 (20%) 3 (6%) 36 (73%) 49Clyde 8 (24%) 4 (12%) 22 (65%) 34Woolf 6 (35%) 2 (12%) 9 (53%) 17Browne-Wilkinson 6 (27%) 5 (23%) 11 (50%) 22Phillips 4 (25%) 1 (6%) 11 (69%) 16Cooke 4 (22%) 2 (11%) 12 (67%) 18Mackay 4 (16%) 3 (12%) 18 (72%) 25Nolan 3 (38%) 0 (0%) 5 (63%) 8Mustill 2 (50%) 0 (0%) 2 (50%) 4Neuberger 2 (11%) 1 (6%) 15 (83%) 18Lloyd 1 (33%) 0 (0%) 2 (67%) 3Cullen 0 (0%) 1 (25%) 3 (75%) 4

Jauncey 0 (0%) 0 (0%) 2 (100%) 2Go 0 (0%) 1 (33%) 2 (67%) 3Irvine 0 (0%) 0 (0%) 2 (100%) 2

70 See Dickson,The Processing of Appeals in the House of Lords n 33 above, 589.




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HRA (Bingham, Hope, Rodger, Hale); another six heard more than 40 (Steyn,Nicholls, Scott, Carswell, Homann, Brown).

Given that few of the judges in question stayed in oce for the whole of thepost-HRA sample period,71 we also calculated what proportion of each judgesworkload was taken up by human rights matters. Of those who decided morethan ten cases in that period, four judges devoted over 40 per cent of their indivi-dual caseload to human rights cases: Lord Bingham (41 per cent), Baroness Hale(48 per cent), Lord Carswell (48 per cent) and Lord Hutton (40 per cent). (LordBrown comes close with 38 per cent.) These judges also took part in an above-average number of rights-related cases (between 12^17 per cent of their caseload).We might observe that public law matters (once again assuming that this equatesto something like the combination of the human rights and rights-related cate-gories) occupy more than half of the workload of this group of judges. Thesejudges are specialist repeat players who, as such, are likely to have had a particularinuence on HL decision-making in human rights matters.

UNANIMITY, CONCURRENCES AND DISSENTS:

INDIVIDUAL JUDGES

We also wanted to know whether there was any variation in judgment-givingbehaviour.We identied how often each Law Lord issued unanimous opinions,gave concurring speeches, and dissented in the post-HRA sample period. (Judgeswho participated in fewer than 10 cases were not examined.) These data were bro-ken down further, with gures provided for judgment-giving behaviour in bothhuman rights and rights-related cases.Table 7 shows the results of these investiga-tions. Figures are given both as raw numbers and as percentages.

The following observations can be drawn from these data. As far as dissent ratesare concerned, the range is reasonably narrow, although there is some variationbetween individual judges.The relatively high dissent rates of Lord Woolf (12 percent of all cases he heard and 17 per cent of human rights cases) or Baroness Hale (10per cent and 11 per cent) can be contrasted with the low levels of dissent shown byLord Brown (1 per cent and 2 per cent) or Lord Browne-Wilkinson (0 per cent).The statistics do not reveal the presence of a persistent dissenter in the mould of

Justice Kirby, recently retired from the High Court of Australia, whose reputationfor dissent was supported by statistical evidence of this sort.72 The closest equiva-lent is Lord Mance, who dissented in 14 per cent of all cases and 30 per cent ofhuman rights cases that he sat on. A slight caveat needs to be entered here, though,in that the last gure is derived from a small number of just ten human rights cases.

By contrast, there are noticeable dierences between those judges who partici-pate in a high proportion of unanimous judgments and those who tend to issueconcurrences. Lord Browne-Wilkinson typies the rst type of judge: 77 per cent

71 Only Lords Bingham, Hope, Homann and Scott were in oce for the whole post-HRA sample

period.72 A. Lynch,The Gleeson Court on Constitutional Law ^ An Empirical Analysis of its First Five

Years (2003) 26 University of New SouthWales Law Journal 32.



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Table7:ContributionofIndivi

dualJudgestoCases(post-HRA)

Participationin

unanimousjudgment

Concurrences

Dissents

Allcases

HumanrightscasesRights-relatedcases

Allca

ses


Allcases


Browne-Wilkinson17(77%)

5(83

%)

3(60%)

5(23

%)

1(17%)

2(40%

)

0(0%)

0(0%)

0(0%)

Slynn

18(32%)

4(27

%)

1(17%)

35(61

%)

10(67%)

4(66%

)

4(7%)

1(7%)

1(17%)

Woo

lf

7(41%)

3(50

%)

1(50%)

8(47

%)

2(33%)

1(50%

)

2(12%)

1(17%)

0(0%)

Nicholls

97(54%)

20(43

%)

10(50%)

72(40

%)

23(49%)

10(50%

)

11(6%)

4(9%)

0(0%)

Steyn

84(51%)

22(46

%)

12(48%)

70(42

%)

21(44%)

12(48%

)

12(7%)

5(10%)

1(4%)

Homann

78(39%)

17(40

%)

6(46%)

112(57

%)

22(51%)

6(46%

)

8(4%)

4(9%)

1(8%)

Coo

ke

10(56%)

2(50

%)

1(50%)

5(28

%)

2(50%)

1(50%

)

3(17%)

0(0%)

0(0%)

Clyde

10(29%)

1(13

%)

1(25%)

22(65

%)

7(88%)

3(75%

)

2(6%)

0(0%)

0(0%)

Hope

56(27%)

11(18

%)

9(30%)

143(69

%)

46(78%)

21(70%

)

7(3%)

2(3%)

0(0%)

Hutton

45(46%)

17(44

%)

5(42%)

48(49

%)

21(54%)

7(58%

)

5(5%)

1(3%)

0(0%)

Hob

house

34(40%)

7(39

%)

2(29%)

44(52

%)

11(61%)

5(71%

)

7(8%)

0(0%)

0(0%)

Millett

23(30%)

4(33

%)

3(43%)

47(61

%)

7(58%)

4(57%

)

7(9%)

1(8%)

0(0%)

Phillips

10(63%)

3(75

%)

0(0%)

5(31

%)

1(25%)

1(100%)

1(6%)

0(0%)

0(0%)

Mac

kay

13(52%)

2(50

%)

1(33%)

11(44

%)

2(50%)

2(67%

)

1(4%)

0(0%)

0(0%)

Bingham

59(29%)

22(26

%)

8(29%)

135(66

%)

58(68%)

18(64%

)

12(6%)

5(6%)

2(7%)

Scott

59(35%)

14(30

%)

5(36%)

96(56

%)

30(64%)

9(64%

)

16(9%)

3(6%)

0(0%)

Rodger

69(41%)

18(33

%)

9(18%)

91(54

%)

32(58%)

18(64%

)

9(5%)

5(9%)

1(4%)

Wal

ker

60(44%)

11(39

%)

7(70%)

66(49

%)

15(54%)

3(30%

)

9(7%)

2(7%)

0(0%)

Hale

31(28%)

13(24

%)

5(26%)

70(63

%)

35(65%)

13(68%

)

11(10%)

6(11%)

1(5%)

Brown

48(45%)

12(29

%)

8(53%)

58(54

%)

28(68%)

7(47%

)

1(1%)

1(2%)

0(0%)

Carswe

ll

43(47%)

18(41

%)

9(56%)

42(46

%)

22(50%)

4(25%

)

7(8%)

4(9%)

3(19%)

Mance

17(35%)

1(10

%)

1(33%)

25(51

%)

6(60%)

1(33%

)

7(14%)

3(30%)

1(33%)

Neu

ber

ger

7(39%)

0(0%

)

0(0%)

9(50

%)

2(100%)

1(100%)

2(11%)

0(0%)

0(0%)




20/27

of his decisions during the sample period were part of a composite ruling. Baron-ess Hale is representative of the latter: just 28 per cent of her judgments were partof a unanimous decision, and 64 per cent were concurrences.The older generationof judges (with the exception of Lord Mackay) who saw the arrival of the HRAbut did not remain in the HL too long after the Acts infancy were more likely toissue composite judgments than their younger colleagues. These next generationjudges, and those veteran judges, like Lords Homann and Hope, who remainedon the court longer and saw the HRA enter its adolescence, do not seem quite asattached to older and perhaps more formal constraints of decision-making thatappear to have bound their older colleagues.73

VOTING RECORDS IN HUMAN RIGHTS CASES

The voting records of individual judges in human rights case were examined next.

Our previous article identied the win rates for human rights and rights-relatedcases. Judgments were coded as a win or loss depending on whether the humanrights or rights-related claim met with success.74 Only where the substantive claimwas upheld was the case coded as a win.75 We found that, overall, in the post-HRAsample period out of 132 human rights cases only 35 human rights claims were suc-cessful (ie human rights claims win in somewhere between one in three and one infour cases).We adopted a similar approach here, recording the number of times eachjudge issued an opinion in favour of a human rights win. Note that this meant thatwe counted not only the instances when a judge gave an opinion which concurred(either as an I concur opinion or a separate concurring opinion) with the rest of the

court that a human rights claim should succeed, but also the instances in which ajudge dissented from the nding of the rest of the court that a rights claim should fail.

Our ndings are presented in Figure 3. All judges who heard more than vehuman rights cases in our sample period are ranked on the basis of the percentageof cases in which they gave an opinion in favour of a human rights win. For thesake of comparison, the percentage gures of win votes in rights-related cases arealso given. Those judges who heard more than ve human rights cases, but lessthan ve rights-related cases have an asterisk next to their name.

The graph reveals considerable variation in the voting records of individual judges in human rights cases: win votes records range from 0 per cent (Lord

Browne-Wilkinson) to 50 per cent (Lord Mance). At the top end of the graph,we nd that only six judges voted for human rights wins in at least one in three

73 Hunt, n 23 above, 99, argued before the HRA came into force that judges will be forced to over-come their narrow view of the forms and limits of adjudication.

74 For the application of a broadly similar methodology to Charter decision-making in the CanadianSupreme Court, see S. Choudhry and C. E. Hunter,Measuring Judicial Activism on the SupremeCourt of Canada: A Comment on Newfoundland (Treasury Board) v NAPE (2003) 58 McGill LawJournal 525.

75 Where there were two rights issues in a case in which the outcome diered for each, or conjoinedappeals where the outcome in each appeal diered due to the particular facts of the case, the success-

ful claim prevailed and the case was coded as a win. For example, R (on the application of Clift) vSecretary of State for the Home Department [2006] UKHL 54 where the appeal on human rightsgrounds by Clift was dismissed but that made by the other two appellants in the case was allowed.



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of the human rights cases they heard: Lords Mance, Carswell, Bingham, Steyn,and Woolf, and Baroness Hale.76 (Recall that these records include instances inwhich the judge voted for a human rights win in cases where that position wasnot taken by the majority.) These judges also tend to be repeat players ^ a highpercentage of their workload is given to human rights cases, and Bingham, Cars-

well, Steyn and Hale each heard over one third of all the human rights cases thatcame before the HL in the sample period. The other repeat players tend to clusterin the next bracket down ^ that is, they decided in favour of a human rights claimin between one quarter and one third of the human rights cases they heard.

The other main observations concern the dierence in treatment of rights-relatedand human rights cases. The graph shows that every judge in our survey voted for arights-relatedwinmore frequently than for a human rights claim. (Apart from LordClyde, who was just as unlikely to vote for either.) It also suggests that those who

Percentage of opinions given in favour of a human rights win

50

Hope

40

33

86

71

58

62

57

54

55

40

40

100

44

64

47

50

67

0

13

17

17

18

21

23

23

25

27

28

29

33

33

33

37

39

50

100

Browne-Wilkinson

Slynn*

Hobhouse

Millett

Walker

Hutton

Hoffmann

Scot

Clyde*

Rodger

Nicholls

Brown

Woolf*

Steyn

Bingham

Hale

Carswell

Mance*

Percentage of Opinions

Percentage of opinions given in favour of a rights-related win

0 20 40 60 80

29

Figure 3: Voting Records in Human Rights and Rights-Related Cases

76 Compare Dicksons rough and ready analysis of the Law Lords records on human rights whichgives further colour to the statistics: Dickson,Safe in their Hands? Britains Law Lords and HumanRights n 33 above, 343^344.




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appear hostile to human rights claims ^ broadly speaking, those who vote for humanrights claims in less than one in three of the human rights cases they hear ^ may notbe generally unsympathetic to rights-related claims. In fact, with the exception ofLords Clyde and Slynn (neither of whom heard more than ve of these cases), thevoting records in favour of wins in rights-related cases is just as robust for thislowergroup as it is in respect of the group of six that occupies the higher reaches of thegraph. (Indeed, Lords Hobhouse, Millett and Homann have some of the mostfavourable records of voting for rights-related claims.) The judges in the lowerreaches of the table are nearly three times more likely to decide in favour of arights-related argument than a human rights argument. For example, although LordHobhouse only voted for a human rights win in17 per cent of the cases he heard, hefavoured rights-related arguments in 86 per cent of the relevant cases.

These results add an important layer to the ndings on collective decision-making presented above. In particular, they reveal dierences in the treatment ofhuman rights claims that were not apparent in the earlier gures and, in so doing,

provide some support for the thesis that decision-making in human rights cases isparticularly prone to individual judicial disagreement. The question arises: whyare there such signicant variations between the judges in human rights cases,and why do some judges (and not others) appear more prone to decide in favourof rights-related claims than human rights? Although our study did not set out totest this, the gures do not reveal an ideological split along party-political lines, asempirical studies of the American judiciary have sometimes revealed.77 Were thatthe case, we would expect to have seen variation between judges (which we see)combined with little variation in each judges handling of rights-related andhuman rights claims (which we do not). There are, however, two more plausible

and overlapping explanations of the ndings. The gures may show, rst, theexistence of dierences in the attitudes of judges to human rights claims. Awinrate of one in three is already low - the higher rate for rights-related cases bringsthis into sharp relief - but a rate of one in four (or lower) really does represent asignicant statement of hostility to the very idea of human rights. Simply put,while all judges seem to prefer more traditional, common law grounds of argu-ment to human rights claims, some judges greatly prefer them. Admittedly, thisanalysis assumes cases across both categories are similarly meritorious. Although itmay have been that the early post-HRA period saw more cases that tested theboundaries in the human rights, as opposed to the rights-related, category, this

cannot wholly account for the dierence in voting records. Second, the variationin voting records may also relate to the condence and conviction with which thevarious judges handle human rights cases. In general, those more familiar withhuman rights are more prone tovote for a human rights win. And those who havebeen on the court longer (generally those judges who, pre-HRA, resisted theintroduction of human rights by the back door) were less likely to vote forhuman rights claims than those who came onto the court later.

77 See, eg, C. Sustein, D. Schkade, L. M. Ellman and A. Sawicki, Are Judges Political?: An Empirical

Analysis of the FederalJudiciary (Washington DC: Brookings Institution Press, 2006); B. Z.Tamanaha,Beyond the Formalist-Realist Divide: The Rise of Politics in Judging (Princeton: Princeton UniversityPress, 2009).



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WHO AGREES WITH WHOM?

Since dierent Law Lords hear dierent cases, the statistics on individual votingrecords cannot tell us how often a particular judge agreed or disagreed with anyparticular one of his or her fellow judges. To be able to say something more deniteabout patterns of agreement and disagreement, therefore, we identied the numberof times each judge agreed or disagreed with each of the other judges when they saton the same human rights cases.Table 8 presents these ndings in percentage gures.Before analysing this material, we should be aware of its limitations. The guresregister simple agreement and disagreement. They tell us nothing about the typesof cases that were subject to agreement or disagreement nor about the basis on whichjudges disagreed. As such, they cannot be equated to inuence: they cannot be used asa basis from which to identify particularly inuential judges. So, while our analysissuggests that Lord Hutton (at least among the repeat players) has the highest overallagreement rating ^ he was in agreement with more judges than any other judge ^

this does not tell us whether he is a judge other judges tend to listen to and be inu-enced by or a judge who tends to be inuenced by other judges.The statistics on dissent rates presented earlier in the article showed that there

were no strong, ideological disagreements between members of the court duringour sample period. (85 per cent of human rights cases were decided without anydissent being given.) Our ndings on individual agreement records support thatresult, showing a relatively narrow range on which judges agreed or disagreed. Ifwe exclude infrequent judicial pairings, the levels of agreement range from 60 percent to 100 per cent. Even those judges who have substantially dierent win rateson human rights cases do not disagree all that often. (For instance, Lord Hob-

house, who comes near the bottom of Figure 3, agreed with Lord Bingham andBaroness Hale, who both came near the top, 100 per cent of the time.) The guresconrm that the HL was not during the period in question a court divided bystrong ideological disagreement between individual judges.

Within this broadly consensual context, however, certain patterns and group-ings emerge. For instance, particularly high levels of agreement can be observedamong the older generation of judges ^ those whose arrival in the HL predatedthe operation of the HRA. (This grouping excludes Lord Bingham, whose posi-tion commenced just before the HRA came into force, but whose decision-mak-ing record and behaviour tallies more with the newer arrivals than the old guard.)

The individual records indicate that these judges (Lords Hope, Millett, Hob-house, Clyde, Homann, Nicholls, Slynn and Browne-Wilkinson) agree witheach other on nearly every case that they heard together.78 For instance, LordsNicholls and Homann agreed in all 22 human rights cases they heard together,Lords Scott and Hobhouse all their 12 cases, and Lords Hutton and Slynn all their10 cases. The extremely high agreement rates suggest that these veteran Law Lordsacted almost like a voting bloc in human rights cases. As we have seen, the judges in

78 The only exception, aside from where the judges in question have only heard a very small number

of cases together (eg Lords Slynn and Nicholls; Clyde and Nicholls), appears to be Lords Hope andHomann, whose agreement rate is a relatively low 78%; and perhaps Lords Hope and Millett(agreement rate of 80%, but they only heard ve cases together).




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this group tend to congregate at the bottom of the graph on human rights votingrecords (Figure 3), except for Lords Hope and Nicholls who appear middle table.That is to say, their decision-making behaviour reveals this veteran group of judgesto be consistently and collectively hostile to human rights claims. Among the moreexperienced judges, Lord Steyn is the only outlier. His agreement record with theother judges in this group is much lower than the rate of nearly 100 per cent typicalof that group.

There is no such consistency among the newer members of the court, eventhose judges who were repeat players in human rights matters. There is no consis-tent pattern of agreement (at least along the lines operating among many mem-bers of the old guard) in respect of those who came onto the court from 2000onwards. Nor does a consistent pattern of agreement emerge between the smallergroup of human rights repeat players who are not pre-2000 judges (ie LordsBingham, Carswell, Brown and Hutton, and Baroness Hale).

This nding ^ that pre-2000 Law Lords tend to be consistently and collec-

tively negative towards human rights claims while the attitude of post-2000judges varies more substantially ^ ties in with an observation made in our pre-vious article.We discovered that win rates for human rights cases increased overthe sample period: win rates for 2001and 2002 were substantially lower than thosein 2003; and they increased again in 2004 and 2005. It seems likely, in light of thending we have just uncovered, that this phenomenon can be explained at least inpart by the gradual retirement of the more experienced, pre-2000 judges.79

CONCLUSIONS

The HRA has unleashed a huge interest by the public in the institution of the judi-ciary.80 This article contributes to the understanding of the HRA by oering a quan-titative examination of the Acts impact on judging within the UKs highest court.

Noise-levels in the HL increased dramatically post-HRA. However, contraryto some expectations, the statistics on HL decision-making revealed that this wasnot due to a rise in dissent rates after the Act came into force. The courts noisinesswas due to a sharp increase in the number of unanimous by concurrence judg-ments at the time the Act came into force. Although this nding might appear

to show a direct relationship between the HRA and HL decision-making, a morecase-sensitive analysis revealed essentially the same increase in unanimous by con-currence judgments for all categories of case, including cases that had no connec-tion with human rights.

The HRA seems to have had a profound impact on decision-making beha-viour within the HL. It seems to have acted as a spur to the HL to start thinkingof itself in dierent terms, as something of a de facto supreme court. For the datademonstrate a very real change in the delivery of judgments by the HL.The HL hasbecome a much noisier court since the HRA was introduced. Judges are much

79 Lord Browne-Wilkinson retired in 2000; Lord Clyde retired in 2001; Lord Slynn retired in 2002;Lord Hobhouse retired in 2004; and Lord Millett retired in 2004.

80 C. Gearty, Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004) 208.




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more prone to issue individual statements on the matters of law and legal principlethat are presented to them. Decision-making has thus become more open anddiscursive.The HRA, anunprecedented transfer of power to the judiciary,81gavethe judges more responsibility; but with that added responsibility came addi-tional scrutiny. Not only are the outcomes of cases particularly prone to profes-sional and public comment and criticism; so too are the arguments and moralreasons they adduce to support them. In this climate, our ndings indicate, thejudges seem increasingly to have taken individual responsibility for the positionthey adopt. Our statistics reveal a general tendency to present ones case in a man-ner precisely of ones own choosing.

Contrary to expectations, the dissent rates in human rights and rights-relatedcases fell after the HRA came into force; they remained static for all other cases.More detailed statistics on the decision-making behaviour of individual judgeslent nuance to this analysis. They conrmed that in the context of human rightslitigation, all HL judges are not necessarily equal. Some judges, like Lords Bing-

ham, Carswell and Hutton and Baroness Hale, decide more human rights casesthan others, and also devote a far higher proportion of their individual caseload tothose cases. The gures showed that dissent rates did not vary greatly betweenindividual judges and revealed no great dissenter (with the possible exception ofLord Mance) during the HRA era. Substantial dierences between individualjudges emerged, however, when we examined individual records on unanimousand concurrent judgments. These dierences correlated closely with the age orexperience of the judges: older judges preferred being part of composite judg-ments; their younger colleagues were much more likely to give concurrentspeeches. It would appear, then, that it was the newer generation of judges who

have been most ready to take up the call for judicial self-consciousness,82

pickingup the rhetoric of human rights and translating it into judicial practice through anopening out of their judgments.83

This division within an otherwise broadly consensual court was underscoredby statistics on individual voting records in post-HRA human rights cases. Thegures showed a large variation in the approach of individual judges to humanrights claims. They also showed that all judges appeared more receptive torights-related (common law) arguments than human rights claims.The ndingson rights-related claims indicate that the dierences in voting records in humanrights cases could not be tied straightforwardly to dierences in political ideology,

of the sort that might be plotted, say, on a liberal/conservative axis. A better expla-nation is that some judges took a particularly narrow approach to human rightsclaims, and that those who did tended to be both veteran judges on the court andalso less familiar with human rights litigation.84 Those who devoted more of theircaseload to public law cases tended to take human rights seriously, exhibiting

81 K. D. Ewing,The Human Rights Act and Parliamentary Democracy (1999) 62 MLR 79, 79.82 C. Gearty, above n 80, 207.83 See, eg, Lord Rodger,The Form and Language of Judicial Opinions (2002) 118 LQR 226, 227:

Since all judges are independent, they are free to choose both the form and language of their opi-

nions.84 See Feldman, n 33 above, 545: There is a major division between those Law Lords who see human

rights as essentially legal concepts to be interpreted and applied in a more or less formal way with a



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more positive voting records on human rights matters (but not necessarily inrights-related cases). Our ndings on patterns of individual judicial agreementand disagreement, which provided a more accurate picture of how judges werealigned in human rights cases, reinforced this impression.When they sat together,the older generation of judges acted as a kind of voting bloc. Their rates of agree-ment with the other members of this grouping were extremely high. The datasuggest that the newer generation of judges displayed no parallel tendency todecide in concert.

With a change from House of Lords to Supreme Court, and the in-built anti-human rights sentiment of the old guard having gone, what are we left with? Wemay see more wins in human rights cases; although this of course will depend atleast in part on the disposition of the newer judges. A safer bet would be to predictthe continuation of noise, and not just in human rights cases. This may not suitall advocates or all litigants, for whom one might expect certainty to be a moreweighty value.85 And there is no doubt that an excess of noise can sometimes

bring about confusion.86

However, the open (and openly competitive) processengendered by the presence of concurrences and dissents may be said to act, inLauterpachts phrase, as a powerful stimulus to the maximum eort of which atribunal is capable.87 What one might call the humanising eect of the HRA onjudicial decision-making is entirely at one with the deep structure and purpose ofthat statute.

view to maximising certainty, and those who interpret them in an evolutionary way in the light ofdeveloping social and moral values. For a long time, the former approach dominated.

85 For example, Lord Neuberger, Master of the Rolls, has noted that Five reasoned judgments, eachwith slightly dierent ratios, all reaching the same result, can cause problems for discerning whatthe highest court has actually decided. Clarity in the law, that long recognised necessity, is lostalong the way. Neuberger, Insolvency, Internationalism, and Supreme Court Judgments Speechgiven at the Insolvency L

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