This article is taken from the August-September 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

Last year, a Divisional Court of the High Court, comprised of a lord justice (a regular judge of the Court of Appeal) and a High Court judge, ruled that the government’s Rwanda plan was lawful. 

On 29 June, the Court of Appeal reversed the High Court’s ruling and declared the plan unlawful. The Lord Chief Justice would have upheld the High Court’s decision; but he was outvoted by the Master of the Rolls and another lord justice. 

In other words, of the five senior judges who have heard the case so far, three found for the government and two against. But because they happened to be distributed unevenly across two courts, the numerical minority won the day (for now; the case will almost certainly go to the Supreme Court).

To almost every English lawyer, this is a perfectly unexceptionable outcome. In the hierarchical system of English courts, the Court of Appeal’s opinion prevails over that of the High Court, and that is that. Why that is the case, however, is less clear.

The most obvious theory is that the higher the court, the better the judges, and therefore the opinion of the higher court is more likely to be right than that of the lower one. 

After all, there are 100-odd High Court judges, but fewer than 50 Court of Appeal judges and a dozen Supreme Court judges, and the general presumption is that only the best judges of each court are promoted to the next one.

But this theory is undone by the fact that English judges regularly sit in courts above and below their own. Although a Court of Appeal judge is treated like a High Court judge when he sits in the High Court, one imagines that Lord Justice Lewis did not suddenly become less good a judge by sitting in the lower court in the Rwanda case. 

Conversely, High Court judges are sometimes asked to sit in the Court of Appeal, but they do not take their temporarily increased wisdom back to their own courts.

Another view is that appellate courts make better decisions by focusing on the really hard questions raised by a case and by ignoring the rest. Yet many judges have doubted that view. 

Lord Denning once remarked (not entirely self-disinterestedly, one suspects) that half of the Court of Appeal’s recent decisions on a certain topic were reversed by the House of Lords on appeal; but there was no reason to suppose that half of the House of Lords’ decisions would not be reversed if there were an even higher appellate court. 

A generation before, Lord Justice Atkin had put his court’s overall reversal rate by the Lords at a third. Perhaps something had gone awry in the interval.

The Law of Citations is often thought to represent a low point in the history of Roman law

The mechanics of the appellate hierarchy have long flummoxed legal reformers. The Supreme Court of Judicature Act 1873, which rationalised the English court system, originally envisaged a two-tier structure comprised of the High Court and the Court of Appeal, as well as the abolition of the House of Lords’ appellate jurisdiction, but that was undone by Disraeli after the fall of Gladstone’s government the following year.

A century later, the future Labour Lord Chancellor, Lord Gardiner, wrote against the three-tiered system. The country was too poor to afford two appellate courts: a strengthened Court of Appeal would do the job just as well as the House of Lords, whose doors were only open to the rich and the legally aided.

More recently, writing for Policy Exchange, Oxford professor Derrick Wyatt proposed a scheme whereby Supreme Court justices would be replaced by judges from each nation’s court of appeal serving on a rotational basis, not on grounds of national economy but to prevent judicial activism in the apex court. 

Besides, he argued, Supreme Court justices are not unquestionably better as jurists than their colleagues a rung below, but merely primi inter pares, so that the quality of the judgments would remain constant.

If these ideas sound radical, they are positively timid compared to other schemes that have been devised to reduce unpredictability in legal adjudication. During the minority of the Roman child-emperor Valentinian III, his regent issued the Law of Citations, which singled out five (dead) jurists and gave their writings canonical status.

If there was a conflict between them on a point of law, the view of a majority of them prevailed. If the two sides were evenly matched in number, the view of Papinian would be decisive. Only if Papinian did not have a view could the (living) judge choose a view for himself.

The Law of Citations is often thought to represent a low point in the history of Roman law, as “the correct opinion was found by counting heads, not by choosing the best solution”. 

But the legal historian Alan Watson thought it had the merit of “singling out the best jurists to be followed”, instead of the English system where “a court is bound by a decision of a higher court, regardless of whether at that time the court was composed of undistinguished men and women or had reached its decision by illogical arguments”. Lord Denning would have approved.