Not much in today’s newspapers about the Supreme Court’s first judgment, delivered yesterday afternoon. Three justices refused to grant the protective costs order demanded, in effect, by the Legal Services Commission.
The judges rightly ordered the commission, which runs the legal aid scheme on behalf of the government, to pay all the costs of yesterday’s unnecessary hearing.
That was the court’s way of making it clear that the commission should not have tried to get out of its responsibilities in backing a father who challenged a school’s refusal to admit his son as a pupil.
The commission had suggested it might not continue to support the father’s lawyers if there was a risk that it might have to pay the school’s costs in the event that the school wins its forthcoming appeal. But that, said the court, was unlawful. Full reasons are to follow later.
Nine justices will now hear the appeal by the school, JFS, which opens on October 27. Cases are normally heard by five judges although it had originally been decided that this case would be heard by seven. I would not be surprised if the additional two had wanted to take part in what they regard as the most interesting case to come before them this term.
For the first time in England and Wales, part of the hearing was televised live. But the judges will have to give a little more thought to the implications of this. Some of what the judges said in open court yesterday would have helped identify the boy at the centre of the case. There is an order in force preventing this. Perhaps fortunately, the broadcasters had pulled the plug by this point.
Despite a few problems with microphones – it turned out to be too easy to turn them off by mistake – the judges settled down extremely well to their new court. Dinah Rose QC was – as I predicted in an earlier blog – the first counsel to address the Supreme Court. She rose to the occasion by telling Lord Hope, Lady Hale and Lord Brown that it had been a “short walk across Parliament Square but a giant leap for the judicial system”.
She also managed to get in references to the Anglo-Saxon witangemot, Montesquieu’s separation of powers and the great 18th century jurist Blackstone (after whom her chambers are named).
Lord Hope, the deputy president, had indeed strolled across Parliament Square an hour earlier, returning from the Lord Chancellor’s Breakfast with his splendid new robe folded over his arm.
When Lord Phillips, the president, was walking past the front of the court shortly afterwards – without his robe – he was spotted by an ex-prisoner who claims to have been the victim of a miscarriage of justice. Lord Phillips listened politely as the protestor outlined his case. The whole incident went unnoticed by police and security staff.
While I’m sure the President of the Supreme Court won’t be holding regular pavement surgeries for disaffected litigants, it was a touching vignette of free speech in action on the court’s first day.