High Discretion

At the opposite extreme are high courts where there is considerable discretion to set the size and composition of panels. For example, only five of the nine justices of the Supreme Court of Canada are needed to hear an appeal.[1] In reality, the Court sits in panels of five, seven, or nine justices with the chief justice determining both the size and composition of the panel for any appeal. The Court has increasingly heard appeals in larger panels over time.[2] Before 1975 when the Supreme Court was required to hear a wider range of appeals, the

Court used mostly five-justice panels for cases.[3] After the Court gained control of its own docket with most appeals needing the Court to agree to hear them, the size of the average panel increased. From 1984 to 2005, panels of seven justices heard about half of the Supreme Court’s appeals.[4]

Similarly, the relatively recently formed UK Supreme Court consists of 12 justices but does not hear cases en banc.[5] The Appellate Division of the House of Lords, before it was replaced by the Supreme Court in 2009, also consisted of 12 justices (“Lords of Appeal in Ordinary”) and heard appeals mostly in panels of 5 but occasionally in panels of 7 or 9 justices if the appeal was considered important. According to the Constitutional Reform Act, Supreme Court panels must consist of an uneven number of justices, with a minimum of three.[6] Panels are assigned by the registrar, based on considerations of “availability, conflicts of interest, workload, who had sat on the Appeal Committee [PTA committee after 2009], and the needs of the Privy Council,”[7] with the most significant factor being specialization.[8] The president and deputy president of the court may override the registrar’s assigned panels.[9] According to Paterson, some justices approach the registrar directly to request being assigned to cases they have a particular interest in, but the more junior justices tend to refrain from making such requests.[10] Since its inception, five-member panels have heard the overwhelming majority of UK Supreme Court cases,[11] although larger panels of seven or nine members have become more frequent than they were at the House of Lords.[9]

  • [1] Supreme Court Act RSC 1985, c S-26, s 25.
  • [2] Ian greene et al., Final Appeal: Decision-Making in Canadian Courts of Appeal (Toronto: JLorimer, 1998) at 115.
  • [3] Peter McCormick, “Selecting the Supremes: The Appointment of Judges to the SupremeCourt of Canada” (2005) 7:1 Journal of Appellate Practice and Process 1 at 10-11.
  • [4] Benjamin Alarie, Andrew James Green & Edward Iacobucci, “Is Bigger Always Better? OnOptimal Panel Size, with Evidence from the Supreme Court of Canada” (2011) (U Toronto,Legal Studies Research Paper No 08- 15) at 15, online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152322 [Alarie et al., “Panel Size”].
  • [5] Glenn Dymond, “The Appellate Jurisdiction of the House of Lords” (updated November2009) House of Lords Library Note at 22, online: http://www.parliament.uk/documents/lords-library/lln2009-010appellate.pdf.
  • [6] Constitutional Reform Act 2005 (UK), s 42(1).
  • [7] Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford: Hart,2013) at 71 [Paterson].
  • [8] Paterson, supra note 12 at 71-71.
  • [9] Paterson, supra note 12 at 72.
  • [10] Paterson, supra note 12 at 72-73.
  • [11] Cheryl Thomas, “Decision-Making by the United Kingdom Supreme Court and the JudicialCommittee of the Privy Council: 2009-2013” 2013 UCL Judicial Institute: UK.
  • [12] Paterson, supra note 12 at 72.
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