In the aftermath of the EU referendum, observers of British politics have been treated to a Shakespearean orgy of bloodletting, mud-slinging, defenestrating, and back-stabbing. Lawmakers of all parties are settling scores and jostling for position.
In the absence of political leadership, it seems prescient that on 23 June 2016, the day of the referendum itself, Sir Peter Gross (a Court of Appeal judge and former Senior Presiding Judge) delivered a lecture on “Judicial Leadership”. The speech had four themes: developing the law, developing procedure (case management), reform of the justice system, and “Domestic Society and Foreign Relations”. This blog post offers some observations on his speech.
Developing the law
Sir Peter’s first theme is perhaps the only one in which he overstates his case. The claim that “our constitution has always accepted that the courts have as central a role in the development of the law as Parliament” (author’s emphasis) may be received with a little scepticism, together with the contention that, “[t]here is little, to no, area of our law that is not the product of judicial decision-making”. It is one thing to recognise the remarkable contribution of the courts in interpreting legislation and applying it to new conditions. It is also true that large swathes of English law (including substantial parts of the law of tort, equity, contract and restitution) have very little to do with Parliament and a lot to do with the ingenuity of judges. However, one only needs look to Austria (where the Constitutional Court recently annulled the result of the recent presidential election) or the United States (where the Supreme Court is the final arbiter of constitutionality) to see that the demands of leadership placed on the courts of England and Wales are still rather less than some of their counterparts in other advanced democracies. Sir Peter is right to observe that:
“… the more that controversial areas are ‘outsourced’ to the Judiciary, the greater the challenge for… judicial leadership”.
However, he must also acknowledge the constitutional flip side: that the courts may provide leadership only to the extent that Parliament allows them.
Leadership in case management
On leadership in case management, Sir Peter is on unassailable ground. Younger practitioners (myself included) will struggle to remember a world in which “the role of the judge in court… was essentially passive – acerbic interventions aside”. The cultural change, in both civil and criminal proceedings, is striking, and Sir Peter makes a compelling case that, although the judiciary could not have secured it on its own, “judicial leadership has been crucial”. It is hard to imagine the judges of old engaging with the overriding objective, let alone the torrent of ideas and initiatives recently unleashed by the judiciary, resplendent with new acronyms (for example, TSJ (Transforming Summary Justice), JBG (Judicial Business Group), JOG (Judicial Oversight Group), BCM (Better Case Management), PTPH (Plea and Trial Preparation Hearings), DCS (Digital Case System), CCPT (Crown Court Performance Tool)).
Reform of the justice system
On reform of the justice system, too, Sir Peter names an impressive array of changes. He stresses that these have not just been the responsibility of the senior judiciary, but “nationally, at Circuit level, and locally”.
Domestic society and foreign relations
Sir Peter’s final theme, domestic society and foreign relations, may arouse some curiosity. His argument is that since English law and its courts and arbitral tribunals are “world leaders”, the judiciary has a significant role to play in “foreign relations”, in particular by upholding or building the rule of law internationally. Some of the examples of judicial leadership he gives, such as seeking to build comity between courts, or ensuring that the law develops in line with changing commercial practices, are uncontroversial. Others, such as “promoting” English law and London’s leadership in dispute resolution, or “working in the national interest, in coordination with the FCO [Foreign and Commonwealth Office]” (while preserving judicial independence), fall outside what might traditionally have been expected of the judiciary.
Overall, the speech gives the refreshing impression of a judiciary which increasingly knows and understands itself, and is unafraid (and unashamed) of getting its hands dirty in the process of self-improvement. This will be welcome to practitioners and their clients.
Sir Peter concludes with a morsel of judicial understatement: “We live in interesting times”. Perhaps he had in mind that, in Chinese lore, “May you live in interesting times” was a curse rather than a blessing. Either way, in a time of constitutional and political upheaval, it is hard not to see renewed force in Sir Peter’s belief that, “it is impossible to overstate the importance of the rule of law and an independent judiciary to our society”.