Before the Human Rights Act: Judges and Judging in the Twenty-first Century

 

Earlier this week I posted a talk I gave in December 1997 in which I was expressing some thoughts about the likely effect of the human rights legislation which the new Labour Government was then presenting to Parliament. I have just received some tweets from a lecturer in law at Royal Holloway College University of London who said that his public law students might find this talk interesting. When I suggested that it was helpful in showing the width and the limitations of the pre-HRA common law, he replied that it was also helpful for thinking about relationship between courts and Parliament.

This exchange has emboldened me to add this after-dinner speech I gave to members of the Administrative Law Bar Association at the Reform Club 15 months later.  At that time the new rules that would underpin Lord Woolf’s reforms to civil justice were about to come into effect, and the talk gives a fairly vivid account of the challenges the higher courts were going to face in interpreting the new rules and in cascading their decisions downwards to the district judges and deputy district judges and High Court Masters and lawyers on whom the bulk of the task of implementing the reforms was going to fall.

Fortunately, in the event the House of Lords did not interfere very much, and I found myself playing a leading role in meeting the challenge to achieve consistency in the interpretation of the new rules at Court of Appeal level.  My anxieties about the challenges we faced in disseminating our judgments nationwide were in turn greatly eased by the arrival of BAILII, which followed a crowded meeting which I chaired at Chatham House eight months later and the creation of the new website, initially in Australia, early in the following year.

So far as the Human Rights Act is concerned, this talk gives a far more vivid account of the issues I believed to be lying ahead of us then.   I said, for instance:

“I know there are some who think that when the Act comes into force, we judges will only be performing our familiar supervisory role. If a minister honestly considers that an interference is necessary, some people think that all the judges will have to do is to ask whether his or her opinion is irrational, or whether it took into account all relevant considerations, or whether the procedure was fair, or whether the minister was reading the right law when he or she made the decision.

And the same with Parliament. I am not so sure about that. Our job is to apply the Convention, and if a citizen comes to us complaining about the interference of one of his Convention rights, it is we who are going to have to decide whether the interference was necessary in a democratic society in the interests of national security and so on. This will be a decision by a court on an issue of fact.

Does this mean that issues of national security are going to have to be justiciable, and if so how?  What qualifications and experience should a judge have if he is to be properly equipped to decide whether the interference with a right is necessary, as opposed to being desirable or expedient?  What evidence is going to be admissible to help him to decide this?  What happens when a case reaches the Court of Appeal?

It will be our duty, too, as an appellate court, to apply the Convention. Are we going to have to change the criteria by which we decide appeals on questions of fact from lower courts? If the case may involve questions about the compatibility of a provision of an Act of Parliament with the Convention, how are we to control the flow of third party briefs into the Court of Appeal, or prevent the relevant Minister or the Attorney-General from constantly intervening?”

I am not sure that satisfactory answers have yet been found to all these questions.

I ended by asking:

“What about judicial education?  What about the composition of the judiciary?  What about promotions to higher courts, particularly the House of Lords?  What about the stresses of work overload on a judiciary which still has many judges in their sixties and a few in their seventies?  What about the relationship between the judges and the executive?”

What, indeed!

Judges and Judging in the Twenty-First Century

Address given at the Annual Dinner of the Administrative Law Bar Association on 5th March 1999

When I received your kind invitation to speak tonight, I thought it must be a mistake.  Anyone who has ever heard me make an after dinner speech, and my wife has often, will know that I can’t make them.  And anyone who knows me well will know that there would be no chance of my making a speech which had any sort of profound and practical content like the speeches you are used to from members of the Court of Appeal.  Like: what would the judges do if the Third Reich was established in England (per Laws LJ)?  Or wouldn’t it be interesting if we had two mutually inconsistent human rights laws operating in England at the same time (per Sedley LJ)?

There’s no way that I’m going to talk to you about recent developments in administrative law – you all know much more about these than I do.   And I’m far too loyal to the Lord Chancellor and his department to ask why on earth hasn’t the 1994 Law Commission report on Judicial Review been implemented yet.    Instead I thought I would spend a few minutes thinking aloud about judges and judging in the twenty-first century, about some of the problems we have got to solve, and about some of the huge pressures we may be facing.

Next month the Woolf reforms are going to bite.  Next year the Human Rights Act is coming into force.  Everyone knows that everything is going to depend on the judges if these reforms are going to work.  I think – in this audience at any rate – there’s a bit more confidence in the judges than there would have been ten years ago.  I remember Professor Ronnie Dworkin giving a Child’s Lecture then about the importance of incorporating human rights law.  He brushed off the universal worry that the judges wouldn’t be up to it.  He said that we simply had to go ahead, and if the judges aren’t up to it, then all they can do is disappoint us.

Ten years later, these revolutions are about to happen.  Are we ready for them?  On a purely practical level, we have no idea of what is going to hit us when the Woolf reforms bite.  Some say that we are going to be able to throw all our White Books in the bin and start again.  Others think that so long as the new rules contain the same words as the old, and they’re not going to be affected by the Overriding Objectives in Part One, we’ll be using the White Book just as much as ever.

Which philosophy is going to win?  Who’s going to decide what judges sit on what cases?  How are we going to reconcile the unreconcilable decisions in the early years?  Is the House of Lords going to get waterlogged?  Is the Court of Appeal going to get waterlogged? How are we going to get the effect of the leading decisions out into the field, as fast as we can to the circuit judges and the district judges, the barristers’ chambers and the solicitors’ firms who don’t know how to access the Web?  How are we going to spot the pinch-points where uncertainty about the meaning of a rule is going to cause ancillary litigation galore until it’s resolved?  We are all going to be in for some interesting times.

And they are going to get a lot more interesting by the end of next year.  I sit on a Board which is looking at the practical effect of implementing the Human Rights Act on the court system.  There is huge uncertainty about the size of the tidal wave which is going to hit us when the Act comes into force.  Usually when there is difficult new legislation, one part of the system takes the strain.  Next year, we’ll all be taking the strain everywhere at once.  As we all know, human rights points are going to crop up in courts and tribunals all over the country.  Every corner of English law will be up for grabs, and appeals and judicial review applications will be hitting us in the Crown Office List and in the two divisions of the Court of Appeal all at the same time.

Most people are talking about the more obvious implications of the new law.  I want to stop for a moment on two of the less obvious effects.  The first is in Article 7.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  The Strasbourg court has been rather lenient with our odd common law offences.  Perhaps it has been reluctant to interfere too much with the wide margin of appreciation it leaves to us all to administer our national laws as we see fit.  But there have already been a few dissenting opinions at Strasbourg to the effect that English common law crimes aren’t sufficiently clear and predictable.

When we are going to be applying the Convention ourselves, what are we going to say about our law of involuntary manslaughter, as stated in Adomako, by which a doctor who causes a patient’s death by gross negligence will only be guilty of a crime if the jury thinks it ought to be a crime?  Or the law of keeping a disorderly house, where the Court of Appeal in Tan has said that an offence may be proved if a court thinks that the services provided by Madame are calculated to injure the public interest to such an extent as to call for condemnation and punishment?  Are we going to be up to the job of straightening out our criminal law so that it complies with modern international standards of clarity and predictability?  Is the criminal Bar going to be up to the job of helping us?

The other feature of the Convention I want to mention lies in the language used to permit a public authority to justify a violation of a human right.

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety”

and so on.  That’s the language of Article 8, which deals with the right to respect for private life and family life.  The language of Article 10, which deals with freedom of expression, is much the same, although it throws in some different considerations as well, like maintaining the authority and impartiality of the judiciary.

I know there are some who think that when the Act comes into force, we judges will only be performing our familiar supervisory role.  If a minister honestly considers that an interference is necessary, some people think that all the judges will have to do is to ask whether his or her opinion is irrational, or whether it took into account all relevant considerations, or whether the procedure was fair, or whether the minister was reading the right law when he or she made the decision.  And the same with Parliament. I am not so sure about that.  Our job is to apply the Convention, and if a citizen comes to us complaining about the interference of one of his Convention rights, it is we who are going to have to decide whether the interference was necessary in a democratic society in the interests of national security and so on. This will be a decision by a court on an issue of fact.

Does this mean that issues of national security are going to have to be justiciable, and if so how?  What qualifications and experience should a judge have if he is to be properly equipped to decide whether the interference with a right is necessary, as opposed to being desirable or expedient?  What evidence is going to be admissible to help him to decide this?  What happens when a case reaches the Court of Appeal?

It will be our duty, too, as an appellate court, to apply the Convention.  Are we going to have to change the criteria by which we decide appeals on questions of fact from lower courts?  If the case may involve questions about the compatibility of a provision of an Act of Parliament with the Convention, how are we to control the flow of third party briefs into the Court of Appeal, or prevent the relevant Minister or the Attorney-General from constantly intervening?

I don’t want to express any opinions on whether it was a good thing to incorporate the Convention in our law.  The decision has been taken by Parliament and that’s that.  What I want to do is to spend a few moments thinking aloud about the effect that all this is going to have on us judges and our relationship with the two stronger arms of government.

Two years ago I went to Washington to a conference of judges from common law countries.  The message was the same from each country.  What is seen as unwelcome judicial activism is causing very great strains between the executive and the judiciary.  The old mystiques are disappearing, and ministers are becoming much more willing to speak their minds.  There is increasing public interest in finding out who these judges are and where they come from and how they are appointed.  In this country we have seen the first major examples of this movement in the press comment on the Pinochet case, and they certainly won’t be the last.

In Australia, for some years there has been a condition of creative tension between the High Court and the executives in some of the states.  Two years ago, the premier of one of the states referred to judges in the High Court playing the role of philosopher kings and queens, forming themselves into a legal magic circle, and beginning to make laws which the people were then supposed to understand and respect and keep.  He said that the judges were there to apply law to the community, and not to lead it by the nose in directions the community had no say in selecting.

We heard the same from New Zealand and in Canada where there was litigation going on over pay and conditions of service between the provincial court judges and the provincial executive in six out of the ten provinces.  There was quite powerful evidence from Canada that some judges were interpreting Charter rights less purposively than before because they were coming under such strong pressure from the executive in their provinces.

So what about us, and what is going to happen here?  The first serious risk is that the courts are going to be swamped, and we are going to be back to the bad old days of the early 1990s when we had to wait two years for a judicial review case to come on.  We are thinking a lot about the ways in which we may be able to cope with this pressure.  One obvious way lies in the greater use of back-up staff, office lawyers and judicial assistants, to sift and sort and write summaries of cases as soon as they reach the court.  We are also taking very seriously the increased use of IT.  I hope that a Court Service intranet will be in place by next summer, and that every judgment on a human rights case will be published as soon as it is handed down, and be available for everyone immediately on the Court Service website.  This is leading us into sophisticated discussions about standard keywords and search engines and potted digests which I won’t bother you with tonight, but which you’ll all have to learn about.

This is all about nuts and bolts.  We are going to need all the help we can get in seeing how to bring forward the cases which raise points which have simply got to receive an authoritative decision at an early stage.  What is going to be much more fundamental is the effect that all this is going to have on the judges.  I think there has been a good deal of fairly innocent wishful thinking about this: that everyone will be intelligent enough to understand what is going on, and things aren’t going to change very much.

What about judicial education?  What about the composition of the judiciary?  What about promotions to higher courts, particularly the House of Lords?  What about the stresses of work overload on a judiciary which still has many judges in their sixties and a few in their seventies?  What about the relationship between the judges and the executive?

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