In some judicial systems, there is no provision for judges to offer opinions dissenting from those of the majority. It is different in both the US and UK, where some notable dissenting opinions have been delivered in the highest courts. Last month, I was discussing with former law lord and Supreme Court Justice, Lord Brown of Eaton-under-Heywood, the value of dissenting judgments. The conversation derived from an essay he had written, entitled ‘Dissenting Judgments’, which he had contributed to a volume, Judge and Jurist, published in 2013 in memory of Lord Rodger of Earlsferry.
A key argument in the essay is that dissenting judgments are especially important to the losing litigant. The majority judgment will normally make it plain that the argument of the losing litigant has been fully taken into account. ‘But that is not invariably so. And whether or not that is so, it seems to me that nothing is better calculated than a dissenting judgment to demonstrate beyond question that the losing side’s case has been properly understood and, indeed, recognized to have real force, force sufficient to persuade one member of the court at least that it was right.’
This strikes me as a key point, helping reinforce acceptance of the process even if one is on the losing side. It has particular relevance in the context of the UK Supreme Court in the Miller case in 2017, on triggering notification of the UK’s withdrawal from the EU under article 50 of the Treaty on European Union, and the Cherry/Miller (2) case in 2019, on prorogation. In the first case, there was an 8-3 split, with the principal dissenting judgment given by Lord Reed. It was a powerful and well-argued dissent. Those who disagreed with the majority view could take comfort from the fact that their view was heard and articulated by a senior member of the court. Contrast this with Cherry/Miller(2), where the judgment was delivered by Baroness Hale and Lord Reed and with no dissent. This was presumably thought by the justices to reinforce the authority of the judgment, but in practice can be argued to be impolitic, in that there was no consolation for those on the losing side. Given that the losing side comprised the Prime Minister, this may have helped prompt the Conservative manifesto commitment for a constitution, democracy and rights commission, which will address, among other things, how to ensure judicial review is ‘not abused to conduct politics by another means’.
I end by reproducing another point made by Lord Brown: ‘Obviously a judge does not dissent every time he or she disagrees with the majority view. It was once said in the House of Lords that a member of the appellate committee dissents only when his exasperation at the sheer stupidity of his colleagues outweighs his own considerable natural indolence. This dictum has been variously ascribed to Lord Wilberforce and Lord Ackner and, although obviously coined in jest, it carries the seeds of an underlying reality. The more emphatically a judge believes the judgment of the majority to be wrong, the less ready will he or she be simply to assent to it.’