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Not the job it used to be: Lord Chancellor Liz Truss with Lord Thomas (right), the Lord Chief Justice, and Lord Dyson, the Master of the Rolls (©CARL COURT/GETTY IMAGES)


The recent decision of the Divisional Court on Article 50 of the Treaty of European Union (now under appeal) has brought intense public focus to bear on the judges who made that decision, and to a lesser extent on the common law principles with which the court’s reasoning is saturated. However, the vigorously personal denigration in certain quarters of those judges, and the descent of some newspapers to the debating standards of the internet troll, should not conceal the fact that this is an exceptional reaction. For most of the time, non-lawyers take the proper functioning of the English legal system for granted. They know that one of its principal elements is the common law, and that common law is judge-made law, but they usually prefer their judges — even senior judges — to be relatively anonymous. This contrasts with the US, where nominees for the Supreme Court endure wide public exposure through congressional hearings and televised inquisition. As for our own highest court, few would recognise (say) Lord Hoffmann — a great recent judge — by his photograph, and we are broadly content that it should be so. 

The present agitation illustrates why judges matter. They form, together with the executive and the legislature, one of the three pillars of our constitution. This is one reason why UKIP’s call for “democratic control” over judges is historically illiterate as well as deplorable. Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are. For this reason, senior judges have enjoyed a special status in our settlement: holding independent office under the Crown, uncorrupted and beyond ambition (save to be superior judges) or any reproach of personal interest. They are perhaps the only part of our polity in which the public retains a measure of confidence (excluding, apparently, headline writers in the Daily Mail).

We should be proud of our common law too. It has been said that English common law is as important a contribution to European civilisation as the Gothic cathedrals of France or the quattrocento paintings of the Renaissance. Our political history is intimately connected with it. Moreover, the calibre of the common law depends on that of the judges from whom it emanates. For its distinctive feature is that it emerges from the ground up; it is produced by the resolution of myriad disputes by individual judges over centuries. This process uncovers legal principles which, by a benign fiction, are imagined as having existed forever, and the resultant structure is a body of precedent which stretches back over 400 years. All this is quite different from the codified system of a priori rule-making, which has its origins in Roman law, was adopted by Napoleon and is in place in continental Europe. Judges moreover determine our rights in cases under all manner of statutes and regulations, where they are expected to display those qualities which we value in them, no less than when they are engaged in the more creative task of fashioning the common law.

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BAH
December 20th, 2016
2:12 PM
Paul Leslie's posting is wholly inappropriate. His complaints arise from matters nothing to do with what Jonathan Gaisman has so pertinently written about and he does not begin to justify his comment that "most of this article is utter nonsense and even dishonest in parts". That is unsurprising: the article is on the ball and palpably honest.

Paul Leslie
December 15th, 2016
2:12 PM
Unlike most Standpoint articles this piece is not only utter nonsense but also dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are" - what vigorous defence? With the full complicity of many senior and more junior judges - sometimes even without recourse to legislation which tramples the rights of the accused - more and more cases are coming to court where there is no proof even that a crime has been committed Especially since the deplorably one-sided report by Robin Auld, the only defence for the unjustly accused against prosecution is not the lack of solid evidence but a belief by the DPP that there is not a more than 50% possibility of conviction. As far as victims of miscarriages of justice are concerned they have to jump through expensive hoops and demonstrate their innocence "beyond reasonable doubt". Even when, as in the case of Victor Nealon, this can be conclusively demonstrated - including by invoking the proof (I am aware that absence of evidence is not always proof of innocence, but not in this case) that his DNA was completely absent, whether on the victim's clothing or elsewhere at the scene of the crime - there are any number of highly placed judicial functionaries to bring forward specious arguments to deny justice to the wrongfully convicted. See http://thejusticegap.com/2016/04/without-recompense-wrongfully-convicted... and other relevant articles.

Paul Leslie
December 15th, 2016
2:12 PM
Unusually for a Standpoint article most of this article is utter nonsense and even dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are." - and the complicity of so many senior and more junior judges in the serious erosion of the fundamental principle of the presumption of innocence and the contemptible curtailing of compensation for the wrongly convicted? The wrongly convicted have to jump through expensive hoops to have a chance of being compensated and to demonstrate that they are innocent "beyond reasonable doubt". Take, for example, the case of Victor Nealon case where the absence of his DNA at the scene of the crime demonstrates conclusively that he could not have been guilty the high ranking judicial functionaries involved found a way to deny him any form of retroactive justice (I am aware that absence of evidence is not always a proof of innocence, but not in the case of this poor man who served seventeen years in prison following a deplorable miscarriage of justice). In a country where the judiciary is attached to the right of a fair trial someone who is acquitted or wrongly convicted and only belatedly let out of prison should not pay for justice to be properly served.

Angela Brown
November 25th, 2016
7:11 PM
The selection process for judges seems to be built around a framework of desirable competencies and behaviours, as frequently used by HR professionals. A much better indicator of capability and potential is performance in relevant current and previous roles, when available, which it surely is in the case of recruitment to the judiciary.

SGM
November 23rd, 2016
2:11 PM
I entirely agree and particularly enjoyed the excoriation of Falconer. It seems a shame to bring the Article 50 case into it though. However unfair some of the press criticism may be it is not a case of the courts stepping in to restrain a tyrannical legislative majority or overbearing executive, but of the courts being exploited by a disaffected minority to try to frustrate the result of a referendum. Perhaps it was the right decision from a legal point of view but lawyers should not be surprised that non-lawyers look askance at the outcome.

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