Speech at President’s Reception 2019
This is the speech given by the SLS President for 2018-19, Professor Richard Taylor, at the President’s Reception held at the Supreme Court on Wednesday March 13 2019.
Distinguished guests and members of the Society, it is my privilege as President of the Society of Legal Scholars, to be able to welcome you this evening to this reception in this magnificent venue in what is, by happy coincidence, the 10th year of the Supreme Court’s operation and also the 110th year of the Society’s history. It is obvious from those figures that there is some sort of law of inverse proportions at work, since I think as a Society we would be more than happy to be able to say that we had contributed to the development of the law, in our 110 years, even so much as just one tenth, (or more precisely one eleventh) of the huge amount which the Supreme Court has already contributed in just the first 10 years of its still relatively youthful life.
Nevertheless, we strongly believe that the Society of Legal Scholars itself does continue to have its own very important role to play as part of the wider democratic society and legal system in which we exist. This was expressed, much more eloquently than I can attempt, by one of my many impossibly distinguished predecessors as President, the late Professor Sir Neil MacCormick when he said 25 years ago, that
“Teachers of law protected by a justly defined academic freedom ….. have a special role to play in maintaining critical awareness of the preconditions for law and liberty. The part they play is scarcely less vital than that of an independent judiciary and legal profession”
Those words are surely just as true today as they were 25 years ago, perhaps even more so.
In slightly lighter vein, Professor MacCormick’s mention of the role of the independent judiciary and legal profession, and my self-imposed task of trying to explain the place of the SLS within the broader legal system, started me thinking of the constitution and its separation or balance of powers , in terms of an analogy with a rather streamlined motor-vehicle. In this analogy the driver of the vehicle would be the executive branch, whose identity, mercifully, is subject to frequent change (subject of course to the Fixed-term Parliaments Act). The engine as the primary source of power would arguably be the legislature which I suppose leaves the judiciary, if I dare say it here, as the gearbox, obviously a highly sophisticated one, autonomous rather than automatic, articulating and regulating the relationship between the legislative engine and the executive driver. The Gina Miller case perhaps is “l’exemple par excellence” – to use an appropriately European phrase– that was French by the way (Lancastrian dialect) ….and that is as close as I am going to come this evening to mentioning Brexit!
Returning to the gearbox analogy, the lower courts would be represented by gears one and two moving up through the High Court and Court of Appeal as gears three and four with the Supreme Court as fifth, …. top gear obviously…travelling by now at some considerable speed. The Supreme Court along with all the other appellate courts also has available an alternative gear for when it wishes to overturn decisions and that is obviously reverse gear. It is normally prudent (or Prudential perhaps in the light of the name of last year’s restitution case) to slow down, stop and engage neutral before selecting reverse gear and indeed this is usual practice. However, when reversing previous decisions of the House of Lords or Privy Council, the Supreme Court has very occasionally been known to go straight from 5th to reverse gear with somewhat unpredictable and potentially turbulent effects, – such a move is now colloquially known in criminal law circles as the “Jogee manoeuvre.” In Jogee itself, the Supreme Court interestingly adopted what might be thought to be a motoring analogy, referring to the earlier courts taking a “wrong turning”. Of course, one does not have to be driving a vehicle to take a wrong turning but if you are driving rather than walking, you can always blame the Satnav, to which theme I will return shortly.
Firstly however, those amongst you from the legal profession may be wondering, somewhat apprehensively by now, where they feature in this analogy and of course the answer is that they are ….the clutch, the vital mechanism which enables the courts and judiciary to move up and down through the gears. Members of the professions may prefer to see themselves as having a rather more decorous or elevated function than this. They may however recognise the truth of the analogy when they think of the executive exerting unconscionable pressure, with its foot to the floor on top of the maltreated clutch pedal, simultaneously refusing to press on the gas to provide the resources needed by the profession. Analogies apart, reports that junior members of the criminal bar, for example, are effectively being paid less than the minimum wage is something that is of concern us to all of us, for a number of very good reasons – and not just to those of us who contribute to books with Criminal Practice in the title.
Of course there are some members of the profession not to be found in what might be called “the depressed clutch area”- I am conscious at this point that we have representatives of the city firms and commercial bar with us- they probably see themselves as the sophisticated climate control systems, heated seats and electronic retractable roofs which, they at least would say, are so important in producing a vehicle which is ultra-competitive in the worldwide market.
So where does the Society of Legal Scholars feature in all this. Well I think we have to accept that we too are in the category of additional equipment but not, I hasten to add, merely optional if luxurious extras but rather, compulsory safety features and other more or less essential facilities. So some of our educational and publishing activities could be compared to the headlight function, making the unlit road ahead safe for pedestrians and students ( although most of our law students are anything but pedestrian) and at the same time clarifying and illuminating the most advisable direction of travel for the law.(Rather like the Law Commission who I am pleased to say are also very well represented here this evening by current and former Law Commissioners). And of course we also like to look behind us, to where we, and the law, have come from, to help understand where the law is, or should be, going to, and our various funding streams and research groups could be seen as the wing mirrors and reversing lights, parking sensors and reverse cameras etc to be found on the properly equipped modern car.
However, I suspect that the analogy which many of you here tonight may well think is most appropriate is of the members of the Society of Legal Scholars as the various voices of the car satnav system. As the voices of the Satnav, many of you may feel we are typically advising the judiciary, for example, to cross the roundabout, ….eleventh exit,…… then turn left, then turn left again, on no account bear right, … ever… , turn left again, then, and only then, take the motorway. I also suspect that some of you may feel we are too fond of saying “turn around when possible” or even less helpfully, “I wouldn’t start from here if I were you” It has even been alleged that it is almost unknown for us to pronounce ourselves completely satisfied or to be prepared to acknowledge to a court that “you have successfully reached your destination.”
You will be pleased to know that I have more or less reached my destination in terms of this address…. although there are of course always further research questions to look into, such as, in the era of driverless cars, what will happen to the executive, (and does anybody care?). Or in the era of electric vehicles, which do not generally require a gearbox, what will be the function of the judiciary, a question about which we definitely do care, but those are questions for another day. I hope in conclusion that my no doubt flawed analogies have given you some idea of the breadth and context of the aims and functions of the society (and of at least some of its capacity for critical self- awareness). I hope also that you will join with me in looking forward to a successful future for the Society and indeed for the Supreme Court, whether those futures be measured in terms of the next 10, or the next 110, years.
If I can prevail upon you just slightly longer, there is a prize to present and some thanks to express. Firstly, the prize for the best paper at the annual conference. There are 28 parallel subject sections x 4 sessions each with potentially 3 papers at each session which a quick piece of mental arithmetic tells me is …er…336 potential papers in principle. The standard required for the winner is therefore incredibly high. There is a long list of distinguished previous winners, some of whom are indeed with us tonight, and this year’s winner is no exception as the Prize goes to Professor Rebecca Probert of Exeter University for her paper in the Legal History section entitled “R v Hall and the changing perceptions of the crime of Bigamy”, now published in our prestigious refereed journal, Legal Studies. One might perhaps say that Rebecca’s article does for Bigamy what Brian Simpson’s famous book on Dudley & Stephens did for Cannabalism. Certainly, it is meticulously researched and beautifully written.
Finally some thankyou’s; Firstly to everyone here at the Supreme Court for hosting our event and to all of you for gracing it this evening and of course to Lady Hale in particular as President of the Court not only for this evening but also for the tremendous support we receive from her, and indeed all the Justices, throughout every year. Secondly, thank you to all the officers, administrators, Council and Executive Committee members, subject section convenors etc without whose efforts the Society would not exist or function. It would be invidious to try to single out individuals by name this evening as there are so many whose efforts are exceptional but you know who you are, ….and I know where you live, …so keep up the good work,… please.
I am going to make just one exception this year however for our Administrative Secretary, Sally Thomson with whom I have had the pleasure and privilege of working closely for most of the last decade. Sally is retiring from her position at the end of this academic year after nearly twenty years of serving the Society and we will be able to mark that tremendous overall service properly at the Annual Conference in September. However, as this will be the last President’s reception Sally will need to organise I think it is only right to express, with this small presentation, our heartfelt thanks to you tonight Sally for all the painstaking and detailed work you have done to make this reception such a highlight of the Society’s year, both this evening and in past years.