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Q1: Should judges be restricted to the role of adjudication between litigants?
This question focuses mainly on the extent of a judge’s role. It relates mainly to the benefits of judges being responsible for more than merely making decisions. Another angle is whether, and if so, how their role should impinge upon that of the legislature. Who should generate law?
The primary role of judges will always be to adjudicate in disputes. However, as soon as an appeal takes place, the law itself becomes the issue. An appeal, remember, occurs when one of the parties maintains that the court ‘got the law wrong’. When a court decides whether a lower court used the law correctly, or even whether the law itself needs changing, then it must inevitably be legislating in some way. So it would be very difficult to adjudicate without affecting the law itself. It’s quite clear that in England & Wales, judges do, and must, have a secondary role- to make law.
On the other hand, French law reports are short, and technical- almost without reasoning. So in France, adjudication occurs, and statements of law are few and far between. So the judiciary there has a purely adjudicative role, in keeping with Montesquieu’s separation of powers.
Q2: Should law be generated by cases, or just by Parliament?
At 5.3.2 we saw that statutes and cases are initiated, and develop, at different paces, by dissimilar methods. Both reflect society’s values in different ways. Many English commentators would maintain that this is healthy. At the other end of the scale, the French civil code prohibits the generation of case law.
Most members of the public, if asked who makes laws, would not say ‘judges’ or ‘courts’. They would be surprised by this. But this does not mean that, in England & Wales, it is somehow inappropriate.
Statutes have the advantage of being definitive statements of law made by a sovereign body, or under its authority. Their words are constructed to be as clear as possible, but vague if necessary. They also have at least some degree of democratic legitimacy.
Judgments can be subtle and timely in a way that statutes often cannot. There are too many legal issues requiring settlement for Parliament to legislate on them all, even using secondary legislation. The Etridge judgment on Undue Influence was definitive and clear, and explicit in its reasoning, giving guidance to later courts on issues of great subtlety and importance to thousands of ordinary people. Virtually all subsequent cases on the issue have followed the reasoning in the case.
In Chapter 5 you read about poor decisions and prejudiced judgments; but in Chapter 4 you read about rushed and badly conceived legislation. So we have seen that both case law and statute law are prone to errors. Even Parliament can be said to suffer from a ‘democratic deficit’.
You may have your own views. Concerns about the legitimacy of judicial law-making can be allayed on the basis that is has one important limitation. Judges can never overstep the mark by too much because Parliament is supreme, and therefore sovereign. One example is courts’ unwillingness to create a tort of privacy.
At 5.2.2 you read about an occasion when courts just could not get it right conclusively- on the definition of ‘provocation’ in the Homicide Act 1957; eventually Parliament settled the matter by legislating on the issue; the same has occurred many times in different areas.
Finally, it is arguable that having a legislature, augmented by judges, making law, gives the best of both worlds; provided each is aware of its limitations.
Q3: Lord Denning famously thought that the Court of Appeal should be free to depart from unhelpful House of Lords (now Supreme Court) precedent (Broome v Cassell). Would you agree?
Many lawyers look back at the career of Lord Denning with fondness and great respect. Not only was much of his jurisprudence far-sighted and fair, but he was also an extremely appealing legal personality, possessing little of the pomposity that many perceive is so prevalent in the judiciary. (Incidentally, a reading of any Supreme Court judgment will reveal little verbosity and an impressive conciseness of language when dealing with complex issues of law).
Particularly in the areas of contract, tort, and equity, his agenda was reformist. He saw little reason for some of the fundamental, unchanging, rules in those areas.
In Chapter 5 you read that the doctrine of binding precedent is peculiar to common law jurisdictions. You read about the arguments for and against it. The main argument is that law should be predictable and consistent. But with this comes inflexibility. And this was part of Lord Denning’s argument- that the law could not develop. Before the 1966 Practice Statement, the House of Lords was bound by its own earlier decisions. This was clearly unsatisfactory- creating a dead weight of unchangeable law. But now the highest court can (but rarely does) change its mind.
But is this enough? Can the Supreme Court process enough law to reflect changing views and the need for reform? Possibly not. The problem is that if the Court of Appeal were released from being bound by the Supreme Court, case law would be less predictable. At least the Court of Appeal can sometimes depart from its own jurisprudence (on conditions set out in Young v Bristol Aeroplane, and used extensively by Denning).
In Broome v Cassell & co. Ltd, Lord Hailsham (in the House of Lords) rebuked Lord Denning’s attempt to ignore a previous house of Lords authority, "[I]t is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable .... The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." [1972] AC 1027, at 1054
This is the approach in England & Wales; but there are alternatives. For instance, many countries in Europe adopt a doctrine of judicial consistency- i.e. a doctrine of nonbinding judicial precedent. This maybe has the best of both worlds- consistency without inflexibility. Maybe this is what Denning was aiming at.
Again- you will have your own views, and they may well change over time.
Q4: After Brexit, how should UK courts treat the jurisprudence of the ECJ, both past and current?
This question naturally splits into two parts. It does, however, raise many more questions, few of which have been resolved at the time of writing.
Regarding decisions post-Brexit, but concerning events pre-Brexit: the normal rule regarding the position when legislation changes, is that such changes do not have retrospective effect. However, it may be that Brexit is such an unusual situation that such an assumption is too sweeping. Note, that it is possible that not much substantive law will change in the years immediately following Brexit day. It is worth noting that UK litigants continue to appear in the ECJ, either in relation to matters commenced before the UK left the EU, or because they are parties to matters within the EU.
For purely post-Brexit matters, s.6 EU (Withdrawal) Act 2018 provides guidance. Whilst UK courts are not bound by decisions of the ECJ, “a court or tribunal may have regard to anything done on or after exit day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.” Remember that there is a sizeable body of ‘Retained EU Law’. Interpretation of such law is entirely a matter for UK courts, but questions relating to such law are decided, “in accordance with any retained case law and any retained general principles of EU law”. UK courts may depart from retained EU jurisprudence insofar as this does not offend the domestic doctrine of precedent.
Therefore, regarding post-Brexit ECJ jurisprudence the position is likely to be that such decisions are not binding, but are persuasive on matters where UK law and EU law coincide. This is likely to be the case in many areas- either by dint of being EU Law on Brexit day, or because the UK has followed EU developments by agreement or unilaterally.