In February this year, for the first time in my adult life, a serving senior Judge commented on the appointment of another. The serving Judge was Lord Justice Sedley of the Court of Appeal and Privy Council. His target was Lord Sumption, newly appointed to the Supreme Court (and therefore, suddenly, Sedley’s senior) after a lengthy career at the bar and some judicial service, as a part-time Judge on the Courts of Appeal of Jersey and Guernsey. Now there have been barristers appointed directly to the Supreme Court before without full-time judicial service. But no English barrister has been promoted in this way for six decades.
There used to be a tradition in the judiciary up until the middle decades of the last century of appointment to the High Court on the basis of political service (generally in the Conservative Party), but this belonged to the days when the High Court was seen as a relatively “easy” appointment, and the tradition has (thankfully) lapsed.
In 1979, Sumption co-authored with the Conservative philosopher Sir Keith Joseph a book attacking the principle of equality. He followed his promotion in 2011 with a public lecture (‘Judicial and Political Decision-Making: The Uncertain Boundary’) criticising the previous senior judiciary for their supposed intervention in areas best left to Parliament. “English public law has not developed a coherent or principled basis”, Sumption told his listeners “for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts”. The key task for the Judiciary, he argued, was to quit the political terrain, leaving it to Parliament and the executive
How consistently will Sumption abide by his own reading of the principle of Parliamentary sovereignty?
The recent Supreme Court case of Birmingham City Council v Abdulla and ors  UKSC 47, was what practitioners might unkindly consider an “opportunistic” appeal, in common with the general principle with which too many employers defend such claims, which is that the cost of granting equal pay is so high, that it is better to fight and fight, even on hopeless points, in the hope of exhausting the will of the claimants.
When Parliament made the Equal Pay Act in 1970, before the modern day Employment Tribunal jurisdiction had properly got going (which it only did, the following year, with the creation of the statutory tort of unfair dismissal) it expressly provided that a person bringing an Equal Pay claim would have the option of litigating in either the civil court system or the Employment Tribunal. This choice was established, indirectly, by allowing the courts to send a civil equal pay claim for determination at the Tribunal
“Where it appears to the court in which any proceedings are pending that a claim or counterclaim in respect of the operation of an equality clause could more conveniently be disposed of separately by an [employment tribunal], the court may direct that the claim or counterclaim shall be struck out; and (without prejudice to the foregoing) where in proceedings before any court a question arises as to the operation of an equality clause, the court may on the application of any party to the proceedings or otherwise refer that question, or direct it to be referred by a party to the proceedings, to an [employment tribunal] for determination by the tribunal, and may stay or sist the proceedings in the meantime.” (s2(3) EPA 1970)
Parliament’s intention was clear, and for more than 40 years this intention has been respected.
In a civil (ie not ET) case where an equal pay claim was brought outside the Tribunal time limit (6 months) but within the civil court breach of contract time limit (6 years), Birmingham tried to defend the claim by arguing a preliminary point that the case was out of time and should be dismissed. This argument was legally weak – it rested on an analogy with the forum conveniens rules that operate in international law and which require explanation. In recent years, British justice has marketed itself to the world as a suitable venue to hear commercial disputes (the highest-profile but not all of which have involved very wealthy Russian oligarchs). It has been held that there is something abusive about allowing claims in circumstances where the laws of the country concerned would not allow a claim to be brought outside a certain time period, but (for whatever reason) there are longer limitation periods in English law.
Any reader will be able to grasp the abuse involved (and therefore the poverty of the analogy): why should a billionaire in Mexico, whose lawyers failed to advise him about a time limit in his country, be able to escape that time limit by insisting that his commercial case is heard before a court in London, especially in circumstances where the London court will have less expertise in Mexican law, and where it causes extra costs for the defendant to have to fly their witnesses to London, hire English lawyers, etc? There is clearly no equivalent abuse in the circumstances where Parliament has expressly provided that a claimant can choose to bring their case before the UK employment Tribunal or the UK civil courts.
Birmingham’s appeal was weak, should not have been allowed to get beyond the High Court, and failed at each of the three tiers of the judiciary who heard it (HC, CA and SC).
In this context, it is worth spotting however that there was a Sumption dissent, to which Lord Carnwath assented (with the result that Birmingham’s appealed failed only 3-2, i.e. by the narrowest possible margin), and it is also worth noting the basis on which it was delivered.
Sumption found in effect, that the scheme written by Parliament should be judicially re-written as if Parliament had provided a detailed set of threshhold criteria under which a High Court Judge could strike out an equal pay claim, which would include (but not be restricted to) whether the claim was brought outside the original 6 month time limit.
This process of the senior judiciary imaginatively reconstructing what Parliament should have provided for in statute has much in common with the supposed practice of liberal judicial decision-making against which Sumption publicly set himself.
What then was the overriding principle which caused Sumption to depart from his programme? This is what Sumption found: “The view that court proceedings in support of an equal treatment claim should rarely or never be struck out where they would be time-barred in an employment tribunal has the effect of making the statutory protection of the employer available to him only at the option of the employee.”
The talk of “the statutory protection of the employer” is odd – if you look back to section 2(3) which I have quoted above, it is very clearly not about protecting either employees or employers but (as with so much of the common law) giving the maximum discretion to the courts, including to re-assign a case where suitable.
If what Sumption meant is that an employee who brings a claim outside the original 6 month time period suffers no hardship, this gives no weight to the very real difficulty a workers faces in bringing a civil as opposed to an equal pay claim, the chief part of which is that the employee (if she lose her claim) will ordinarily be liable for costs (because, of course, there are different costs rules in the ET and the civil courts).
To this particular reader, Sumption comes uncomfortably close to finding that while the inadmissibility of adjudication on political issues is an overriding legal principle, it is less weighty than the even greater task of defending the interests of capital from those of labour.