27th April 2023
The test for whether an appeal reaches the Supreme Court of the United Kingdom is that it raises “a point of law of general public importance”.
This means that, by defintion, the appeals are of wider interest than to the parties themselves.
It also means that it does not matter how interesting the facts of a particular case may be to judges or to the public, it will not get to the Supreme Court unless the outcome matters to others.
As such, all cases before the Supreme Court should be as transparent as possible.
But.
There is nominal transparency, and there is real transparency.
Being able to watch streamed proceedings, for example, is of little use if it is difficult – even impossible – to follow the submissions and lines of argument.
You may as well walk into the court from Parliament Square and try to work out what is going on at a hearing.
Real transparency comes from having access to the documents before the court – the skeleton arguments (setting out the legal argument), the statements of case (setting out the basis of the parties’ positions), and even the witness statements.
Only then do you have real transparency.
And so the latest news, as reported by Legal Futures, is welcome.
The Supreme Court is moving to putting documents online – subject to the usual (and usually understandable) exceptions for confidentiality in particular cases.
This would be a huge boon for the public understanding of law, and it will enable viewers to fully and constructively engage with what is going on.
A student – or a lay person – could sit with two screens – one watching the hearing, and the other toggling between documents, joyfully clicking onto hyperlinks to case reports and legislation.
There are few better ways than to grasp the nature of practical law and to understand how cases work.
There can be no argument in principle against this: for after all, these are cases which raise “a point of law of general public importance” – and these are documents referred to in open court.
There will be grumbles from some lawyers, who may not be willing to have their well crafted documents effectively become texts freely available in the public domain.
But that would be the cost of having a case before the Supreme Court – if you are litigating on “a point of law of general public importance” then it has to be on an open book basis.
And the general availability of such texts – which would otherwise often be stored in the exclusive precedent files of a small group of law firms and chambers – will promote best practice generally.
Lawyers at such law firms and chambers will be giving something back to the wider profession in a helpful and meaningful way.
Of course: pretty soon many people would get bored by the novelty of such access.
But in the longer term it generally would have a positive effect on legal study and professional development, as well as on the public understanding of law.
And, it must be admitted, it would be pretty great for legal bloggers too – and the readers of such blogs.
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I don’t know if this is upside or downside, but transparently available text would, I assume, be available to a legal specialist (or even general purpose) AI model.
Perhaps a researcher could test the AI against the Court’s judgement?
I think it’s strange that a senior barrister would grumble at their skeleton arguments being available to view, for what is a law report but a summary of the opposing counsels’ submissions i.e. the very arguments that a skeleton argument sets out?
This is great, if overdue news 👏
Perhaps “joyfully” is a tad optimistic
That the overburdened and underfinanced UK legal system can still find the wherewithal for such progressive steps is impressive: doubly so that it recognises that it must be more than the uninformed fly-on-the-wall.
I used to suspect that all legal practice lived down to the opacity of Jarndyce Vs Jarndyce, but was pleasantly corrected by some of your postings calling attention to detailed and humane judgements online. Even greater transparency can only be cheered, except possibly by the scurrilous arms of the media intent on drumming up column inches of saleable outrage.
It’s not transparency unless everything is available in plain, easy to understand language. But lawyers don’t like that. If they didn’t deliberately use a language nobody but they understand, they’d be out of a job.
That’s how they do it in the US, at least for the past 15 years or so.
An anecdote pertinent to the post: I was chatting with a UK partner at a Magic Circle firm on some banking matters. After disgusting the UK junior lawyer with our completely fictional boasts about past drug consumption, we turned to legal listservs. They’re pretty popular in the States, as lawyers post their problems, and other lawyers gain stature by solving them. The partner was jealous, and said that UK lawyers tend to sit on their knowledge.
I am a lawyer and write documents in accessible language, such as:
1) Sentences averaging 20 words (but varying length).
2) No more than 3-4 ideas per sentence.
3) No paragraph more than 4 lines long.
4) Using enumeration to avoid making a mess with modifiers.
5) Use verbs (‘apply’ not ‘make an application’).
6) Take care with word order given English’s lack of gender agreement.
I think that if you read judgements by the top judges you’ll find they are very well written (as a real property lawyer, I’d go for Lord Justice Lewison).