House of Lords as a supreme court


On the delights of legal language.

Scary SIAC

Rather by chance, I ended up reading the currently well-known list of House of Lords opinions on the admissability of torture evidence from a page of judgments of the Lords Appeal Committee.

The case was an important one, concerning the question of whether the Special Immigration and Appeals Committee (SIAC; a rather alarming new court of record, essentially for terrorism cases, which has extraordinary rules of evidence, and which can exclude defendants from its hearings) was permitted to consider evidence which may have been obtained by torture in some foreign country. The decision was that it was not so permitted, though there was a 4/3 division over what the criterion should be, with the slight majority being in favour of evidence being inadmissable only when the court is persuaded, on the balance of probabilities, that the evidence has been obtained by torture, in contrast to the more positive position that evidence is admissable only when the court is persuaded that there is no risk it had been obtained by torture (see paragraph 118 of the judgement). That is, evidence that the court thinks was merely plausibly obtained by torture is admissable in one case but not the other.

The judgment was a Good Thing, and seems to have been a serious reverse for the Government, despite their rather implausible protestations that this was the outcome they were looking for all along.


Prose style

The document containing the opinions is an interesting one, however, independently of the details of the decision. Part of this springs from the grand aura surrounding all documents creating social facts, such as rulings, laws, marriage certificates, and even banknotes, hinting as they do at a larger and chillier apparatus, that rotates on axes we none of us much think about.

These ‘opinions’ look more mysterious because in breaching the surface, like icebergs or whales, they hint at the larger hidden structures. As a parliament briefing explains, these documets are the concatenation of the ‘opinions’ of the five or seven judges who have previously heard the arguments – they are formally speeches given to a session of the Lords.

Studied lack of excitement in the presentation – no formulatic language of ‘ayes’ and ‘nays’, no score, just the vote which presumably followed.

The range of reference is unexpectedly wide, including Magna Carta, 17th century precedents, references to international treaties, commonwealth law, and even US supreme court decisions.

The language is unexpectedly graceful and vivid, with forceful language – not all of it conventional. While some of the syntax is inevitably elaborate, others is undeniably punchy. Perhaps because the issue is one of grand principle, the arguments are phrased so that anyone can follow. However even in other judgments nearby, such as the one on the applicability or otherwise, in Scotland, of section 21 of the Crown Proceedings Act 1947, which are technically intricate and logically tortuous, on a lethally soporific topic, the language is parseable by humans, probably as clear as it could be, and certainly limpid compared to the sort of terms and conditions that no-one ever reads before clicking to accept.

A UK constitution?

The whole thing seems to make the UK constitution a more tangible thing. Though we don't have anything in this area quite as quotable as the impressive prose of the US founding documents, or even as substantial as the EU constitution (in terms of constituting an aggressive blunt instrument), and thus nothing at all to demand primary schoolchildren memorise, the leisured logic here seems to reassure that there is in fact a constitution operating, and a set of rules within which laws and legislators are bound.

It also makes clear what a common law system is. In the SIAC case, the Lords of Appeal argue that, even if the SIAC's rules of evidence appear to have been written in such a generous way as not to exclude evidence obtained by torture, such a conclusion is so offensive that the court can and should refuse to come to that conclusion unless the legislation were completely explicit that that was its intention (see the grand text of paragraph 51). Even in the much more technical second case, the text recites an argument which seems to conclude that the Act in question removed an anomaly and created a right (to sue the crown in particularly circumstances) in England, and simultaneously removed that right which had preexisted in Scotland, and then states, in effect, that since the Act had not explicitly stated that this was its intention, and since this is obviously silly, it is deemed not to count any more.

This is what constitutions are for: laws that are offensive or silly can be removed.

Why was I reading House of Lords judgements?

I ended up reading this rather by chance. I'd been looking at Wikipedia's Magna Carta article, for some reason I now forget. That linked to an Australian Senate article about the contemporary relevance of Magna Carta, which included the rather surprising assertion that it was, in part at least, still a live law; that site linked to a smattering of other parliaments, including the UK one, which had a link on its front page to the parliament's judicial work, and thence to a list of the Lords appeals committee's judgments; picking one of the more recent ones partly at random I came across this one which, to my surprise, referred back to Magna Carta as still having some theoretical relevance to the case under appeal. Not completely a random walk, of course, but it was still a bit of a surprise to end up in quite such a tight circle.

Norman, 2006 January 22