SOCIETY OF LEGAL SCHOLARS

ANNUAL SEMINAR 2009

Judges and Jurists: Reflections on the House of Lords

Thursday 5th and Friday 6th November 2009

The Centenary Seminar, which was held in the Law Society's Hall, the setting for the first meeting of the SLS in December 1908, took place under the auspices of Birmingham Law School and was organised by Mr James Lee, Lecturer at the Birmingham Law School. The Hon. Michael Kirby gave the opening address. Six sessions then formed the programme structure, each taking its title from a Presidential Address to the Holdsworth Club, the Law Society of the University of Birmingham: Judges and Process of Judging, The Independence of Judges, The Common Law in the Age of Human Rights, Law Reform, The Common Law and Europe, and Private Law: Fashions in Juristic Thinking. A concluding address was given by Lord Rodger of Earlsferry. A collection of the papers from the Seminar, entitled From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging will be published by Hart Publishing in late 2010.

Photo: The Hon. Michael Kirby (right foreground) with representatives of the Supreme Court.

Address by The Hon. Michael Kirby AC CMG

Emeritus Professor Nick Wikeley, the President of the Society of Legal Scholars, introduced the Hon Michael Kirby, former Justice of the High Court of Australia, who gave the Opening Address of the Seminar, entitled A Darwinian Reflection on Values and Appointments in Final National Courts. In his charismatic speech, Justice Kirby drew on two other anniversaries in 2009: the 200th anniversary of Charles Darwin's birth, and the 150th anniversary of the publication of his seminal work, On the Origin of Species. He argued that Darwin's theory of evolution by variation has relevance, by analogy, to the living organism of the law. In a wide-ranging address, Justice Kirby reflected in detail on the importance of the new Supreme Court in defining the nation's values, both domestically and internationally. From this, the procedure for appointments to the Supreme Court, prescribed by the Constitutional Reform Act 2005. Justice Kirby expressed the concern that the procedure did not sufficiently recognise the value of diversity in top court judges.

Judges and the Process of Judging

Introduced by the Chair, Mr James Lee, Professor Brice Dickson from Queen's University Belfast, examined why leading judges disagree on quite fundamental issues; Professor Adrian Briggs, University of Oxford, looked at the application of Private International Law and the extent to which the Supreme Court will be able to influence its development. Professor Alan Paterson presented his analysis of the advocacy in the House of Lords, and the evolving relationship between our top judges and those who appears before them.

Professor Brice Dickson, noting restrictions on his choice, had looked at of over fifty cases from 2001 to present where at least two judges in the House of Lords dissented. He gave examples of five tort and five criminal cases. Although a work in progress, Professor Brice suggested that the study went some way to making the case for a plenary court and pointed to the influence of Judges personal experience or views and flaws in the working practices of the House of Lords for example, their ability to choose the cases that they wanted to judge.

Photo: Professor Adrian Briggs, Professor Brice Dickson and Professor Alan Paterson

Turning to Private International Law, Professor Adrian Briggs looked at the application of Private International Law and the extent to which the Supreme Court will be able to influence this area of the Law in the future. He used five recent examples of Private International Law jurisprudence all raising the question of the degree to which parties lent themselves into the laws of a foreign jurisdiction. In summary, Professor Briggs suggested that the role of the Supreme Court may be a vanishing one and that sources of new Private International Law, especially now that the Treaty of Lisbon is ratified, will come from Europe rather than from the Supreme Court.

Professor Alan Paterson, University of Strathclyde whose recent research funded by the Nuffield Foundation had allowed him to question Law Lords about the effect of dialogue with counsel and to study how advocacy has changed over the last 35 years, presented his analysis. Professor Paterson pointed out that shorter hearings had lead to the curtailment of oral argument but that there was a striking difference in the opinion between the advocates and the judiciary; judges believing oral presentations to be very important whilst counsel were less confident about their influence. Professor Paterson had found that judges did not always read written submissions (although these were more necessary in the last decade as hearings were shorter), partly due to fear that they might pre-judge a case. Professor Paterson noted instances where individual judges became well known for shutting down argument and that informal dialogue between judges, for example, at the coffee machine, had vanished from the culture of the judiciary during Lord Bingham's time in office, the implication being that this allows for less polarised dialogue between judges.

The Independence of the Judges

Chair for the early afternoon session, Professor David Feldman, Rouse Ball Professor of English Law, University of Cambridge, introduced speakers Professor Andrew Le Sueur, Queen Mary, University of London and Dr Aileen Kavanagh, University of Oxford.

Professor Le Sueur considered the approach to consultation which led to the establishment of the Supreme Court, the routes used or open to jurists to influence policy and suggested ways in which legal academics could contribute to debate, for example by acting as specialist advisors and facilitating the transfer of knowledge by organising events that open up dialogue with the judiciary. Delegates questioning Professor Le Sueur were concerned that effect which taking the role of specialist advisor might have on the academic freedom the incumbent.

Photo: Professor Andrew Le Sueur

Dr Kavanagh's four questions, whether the Supreme Court would be more independent, more responsive, more activist or more transparent than the House of Lords, formed the basis of her presentation. She reached the following conclusions:

• the change to Supreme Court removed a constitutional anomaly and was a symbolic reinforcement of independence, but of uncertain effect
• that the Court, in terms of responding to changes in society, had no new licence to access information or empirical evidence
• The Supreme Court continues to be the highest court in the land and therefore had no more urgent a need to be activist and change with the times than formerly
• With its accessible website, published programme, public access and television cameras the Supreme Court are making great effort to respond to the promise of greater transparency. However, Dr Kavanagh reasoned that in some respects greater transparency could lead to public loss of confidence in the judiciary: for example, where judges's biographical details were open to scrutiny. This raised a great deal of debate from the floor around the public understanding of judicial appointments.

Photo: Professor Aileen Kavanagh

The Common Law in the Age of Human Rights

Professor Jenny Steele, University of York, in her paper 'Owning or disowning the Convention in Private Law: the House of Lords and the law of tort' gave her view of the effect of the Human Rights Act 1998 on the development of tort law. She examined the extent to which convention rights have become interwoven with private law, pointing that early assumptions that tort law would evolve to take account of convention rights had not proven correct: instead the House of Lords had adopted a more restrictive approach, declining to develop the law in cases such as Smith v Chief Constable of Sussex Police [2008] UKHL 50 and Trent Strategic Health Authority v Jain [2009] UKHL 4, in which it would appear that the victims of serious wrongs had been left without a remedy.

Photo: Professor Jenny Steele

Acting as discussant, James Lee, offered some reflections on Prof Steele's paper, questioning whether the House of Lords approach may be attributable to a desire to give substance to the scheme of the HRA. Professor Gavin Phillipson, Durham Law School, provided some insights with a short and interesting paper on the role of the HRA in the development of the law of privacy. Prof Phillipson argued that the reasoning in the leading cases could be interpreted differently from the general understanding of those decisions, and looked to the future development of the law by the Supreme Court.

Law Reform

Lady Justice Arden, of the Court of Appeal of England and Wales and former Chair of the Law Commission, chaired this session. She introduced the speakers and offered a summary of her own reflections on the subject by way of conclusion.

Professor Elizabeth Cooke, Law Commissioner for England and Wales and Professor of Law at Reading, opened her presentation 'Taking women's property seriously; Mrs Boland, the House of Lords, the Law Commission and the role of consensus' by remembering Lord Campbell's caution that 'Law Reform is by consent or not at all'. She examined the condition of consensual law reform by comparing the approach of the House of Lords to that of the Law Commission. Professor Cooke selected the decision of the House in Williams & Glyn's Bank Ltd v Boland and the responses of Government, Parliament and the Law Commission. In summing up Professor Cooke asserted that changes in law rely on more than one institution and in often a good deal of time.

Photo: Professor Elizabeth Cooke, Lady Justice Arden and Mr James Lee

Mr James Lee, University of Birmingham, gave a paper entitled `Inconsiderate Alterations in our Laws: Legislative Reversals of Supreme Court Decisions' and looked at cases where a ruling has stimulated legislation. Mr Lee outlined the decisions in Barker v Corus and Rothwell v Chemical and Insulating Company Ltd, where the legislative responses had, he argued, given rise to legislation which was reactive rather than referring to principles of law. He looked at the dialogue or lack of dialogue between judiciary and legislators and the interplay between elected Legislators, Judges, Law Lords, lobbyists and public opinion and asked whether it is reasonable for a judge to dissent in order to encourage government to consider new law. Mr Lee's overall concern was that the law was allowed to retain coherence; questions and comments from the floor reflected interest in the lack of procedure or capacity for consultation or intervention by interested bodies ie. The Law Commission, Supreme Court Judges, Legal Academics.

Mr Lee also pointed out that changes in the automatic progression of Judges in the Supreme Court to the Legislative House of Lords upon retirement from the court could lead to a loss of expertise in the scrutiny of new legislation.

The Common Law and Europe: differences of style or substance and do they matter?

Following the morning break, Professor Sir Francis Jacobs QC, of King's College London, introduced Professor Antony Arnull, Barber Professor of Jurisprudence, University of Birmingham, who compared the relationship between Supreme Courts in Europe and the European Court of Justice. Whilst making clear that comparisons were not easy, Professor Arnull concluded that the lack of engagement with ECJ by the House of Lords was striking and possibly explained by:

• The House of Lords' awareness of the ECJ power to enforce community law and the ability of the lower courts to by-pass the House of Lords and go directly to the European Court of Justice.
• The Lords reservations about the length of time for ECJ to come to decisions.
• The UK's late accession and therefore lack of leadership in the development of Community Law compared to, for example, German High Courts.

Professor Arnull expressed a view that the lack of dialogue had hindered the ability of the House of Lords to educate or effect development of European Law and that there might be an opportunity for the Supreme Court to build a more robust and self-confident judiciary in its relationship to European law making.

Photo: Professor Antony Arnull

Dr Alexandra Braun, St. John's College, Oxford, presented a paper entitled 'Judges and Jurists in England: A Comparative View'. In this presentation she provided detailed consideration of the relationship between judges and legal academics in England, with extensive reference to the position in other European jurisdictions. Dr Braun examined the idea of partnerships to consider whether it was a useful description of their relationship, and if it was, what the obligations were on each partner. By drawing on examples from England, Germany, France and Italy, Dr Braun developed a picture of the dynamic of the dialogue between judges and jurists in their task of the search for principle.

Photo: Dr Alexandra Braun

Private Law: Fashions in Juristic Thinking

The final panel session was chaired by Lord Justice Etherton, of the Court of Appeal of England and Wales and Chair of the Law Commission until 2009. The session began with Professor John WG Blackie, Professor of Private Law, University of Strathclyde, who gave a paper entitled 'Courts and Jurists in Scotland  The Impact of Changes of Historical Context'. In his paper, Professor Blackie, offered an historical account of the use of juristic writing by pleaders and judges in Scottish courts since the sixteenth century. His analysis of the Scots approach demonstrated the evolution of judicial attitudes towards both academic literature and comparative material, including from England. Professor Blackie argued that this study offered some lessons for contemporary judging, and that it is inappropriate to seek to develop any universal theory of what is the optimum use by courts of juristic writing.

Following Professor Blackie, Professor Graham Virgo, Professor of English Private Law, University of Cambridge, presented 'Evolution of the law of restitution in the House of Lords: Judging the Judges'. In this paper, Professor Virgo examined the progress of the law of unjust enrichment in ten key decisions of the House of Lords since the seminal case of Lipkin Gorman v Karpnale in 1991. Professor Virgo argued that the case did not offer the surest foundation for the coherent development of the law. In a careful analysis, Professor Virgo considered the use made of academic literature by the House of Lords in deciding restitution cases, and argued that there is at present a gulf between judicial language and the vibrant scholarship conducted in the area.

The final paper in the session by Professor Keith Stanton, Professor of Law, University of Bristol, entitled 'Use of academic scholarship by the House of Lords in duty of care cases'. Professor Stanton had conducted a meticulous study of the development of the law of tort by the House of Lords from 1990 to 2009, in order to evaluate the contribution of academic writing. This study identified that members of the House had made far greater reference to such materials in the last two decades. In particular, academic literature is often an important source for the use of comparative law element in decisions). Professor Stanton suggested that the rise of electronic resources had increased the accessibility of academic materials. Finally, Professor Stanton referred the consequences of judicial engagement with academia for the current discussions considering how to measure the impact of academic research.

The session concluded with a discussion on how academics can facilitate judicial interaction with their work, during which Hon Michael Kirby from the floor and Lord Justice Etherton from the Chair made helpful recommendations. It was suggested that a digest of significant articles from recent law journals could be circulated to the senior judiciary. The merits of 'impact' as an assessment of research was also debated.

Address by The Rt Hon. Lord Rodger of Earlsferry

Lord Rodger of Earlsferry, one of the senior judges of the Supreme Court, concluded the Seminar with an address entitled 'Judges and Jurists  - a Judge's View'. In the address, his Lordship examined the relationship between judges and academics, and the prospects for evolution of that relationship following the inauguration of the Supreme Court. Emphasising that the influence of academic literature is not confined to the express citation in judgments, Lord Rodger explored the themes of the Seminar and was optimistic about the role of academics in helping to shape the development of the law..