MAGNA CARTA AND THE JUDGES - REALISING THE VISION
The Right Honourable Lady Justice Arden
Magna Carta laid the corner stones of
constitution. It placed great
trust and authority in the judges. This article discusses the significance
of Magna Carta from the point of view of the judiciary and the legal system.
Furthermore Magna Carta cast a spotlight on the appointment and
identity of judges. Clause 45 of Magna Carta provided:
will appoint as justices ... only such as know the law of the realm and mean
to observe it well."
Thus, Magna Carta identified the qualities that it was important for judges
to have: knowledge of domestic law and loyalty to the rule of law. But what
other qualities are needed today?
This article discusses two qualities in particular: (1) the need for
social awareness; and (2) the need for an understanding of the case law of
courts outside the
United Kingdom, particularly elsewhere in
Europe. It is no
longer enough that judges know "the law of the realm" in the sense of purely
domestic law. They may also be required to apply law developed outside the
realm – such as European Convention human rights law.
In this study of Magna Carta,
I wish to focus on the role of the judges, the vision which Magna Carta had
for them and how it is to be realised today – 800 years on.
This is a topical subject because, since the last centenary of Magna
Carta in 1915, we have had, all within the last half century, at least three
statutes of great significance to the constitutional framework of the
UK – the European
Communities Act 1972, the Human Rights Act 1998 and the Constitutional
Reform Act 2005. In addition, we
currently have two major high-level inquiries of particular interest and
importance in relation to the judicial function, namely, the Commission on a
UK Bill of Rights and the inquiry of the House of Lords Constitution
Committee into the judicial appointments process.
I do not propose to discuss what these two inquiries may show or may
recommend. What I wish to
examine is the context in which these inquiries arise.
They are building on the foundations which Magna Carta laid.
796 years ago King John, acceding to the demands of the Barons, set the
Great Seal of England on the Charter of Liberties we now call Magna Carta "in the meadow which is called Runnymede, between Windsor and Staines."
In the years which followed, Magna Carta was confirmed over thirty times
by royal charter; it was directed to be read out twice yearly in the great
cathedrals of the land; archbishops and bishops were directed to pronounce
sentences of excommunication on those who by word, deed or counsel went
against the Charter; and Kings were expected to confirm Magna Carta at the
start of their reign. This gives
us some idea of Magna Carta's importance in mediaeval
Not all of the provisions of the document signed by King John were
reconfirmed but most were and indeed some of the clauses remain the law of
In this study, I propose to examine an aspect of Magna Carta which, as
far as I know, has not been examined before, at least not in the course of
this series of Magna Carta lectures.
I propose to examine the role which Magna Carta assigned to the
judges, and ask whether the features of the judicial role envisaged by Magna
Carta have changed and how they are being realised today.
To do this, I have to start by exploring the significance of Magna Carta
from the point of view of the law and the administration of justice by the
judges. I propose to concentrate on the following clauses:
Ordinary lawsuits shall not follow the royal court around, but shall be held
in a fixed place.
(39) No free man shall be seized
or imprisoned, or stripped of his rights or possessions, or outlawed or
exiled, or deprived of his standing in any other way, nor will we proceed
with force against him, or send others to do so, except by the lawful
judgment of his equals or by the law of the land.
(40) To no one will we sell, to no one
deny or delay right or justice.
(45) We will appoint as justices,
constables, sheriffs, or other officials, only men that know the law of the
realm and are minded to keep it well."
Clause 45 did not appear in later versions of Magna Carta after 1215,
and clause 40 was renumbered as clause 29 in at least one later version, but
nothing turns on that for present purposes.
WHAT WAS THE SIGNIFICANCE OF THESE FOUR PROVISIONS OF MAGNA CARTA?
Magna Carta is a monumental affirmation of the rule of law.
It proceeds on the all-important assumption that disputes are to be
decided in accordance with the law.
This was not a new idea but an important confirmation of it.
As Lord Irvine LC put it, "[t]he primary importance of Magna Carta is
that it is a beacon of the rule of law." Laws LJ has described
Magna Carta as a "proclamation of the rule of law".
The King was not above the law and he could not displace the due
application of the law by his judges. Moreover, by providing for the
judicial determination of disputes according to the law of the land, Magna
Carta laid the foundations of what we know today as due process of law.
It also gave judges what has been their traditional and vital role of
acting as a bulwark for the individual against arbitrary action by the
state. The concept of due
process is an element within the concept of the rule of law.
This is not the place for a detailed exposition of the concept of the
rule of law, which may be found instead in Lord Bingham's remarkable book,
The Rule of Law.
In a speech which he gave on Magna Carta,
Lord Bingham summed up its achievements in these terms:
“Conditioned as we are today by our own knowledge of political and
constitutional development over the last nine centuries, it calls for the
exercise of real historical imagination to appreciate the enormity, the
grandeur of what was done at
King John entered the meadow as a ruler acknowledging no secular superior,
whose word was law. He left the
meadow as a ruler who had acknowledged, in the most solemn manner
imaginable, that there were some things even he could not do, at any rate
without breaking his promise.
This, then, is the enduring legacy of Magna Carta: the lesson that no power
is absolute; that all power, however elevated, is subject to constraint;
that, as was to be said by Dr. Thomas Fuller some centuries later, "Be you
never so high, the law is above you".”
In addition, there is significance in the fact that clause 17 provided
that the judges were to sit in a fixed place.
This court became the Court of Common Pleas, as opposed to the Court
of the King's Bench, which followed the King around the country, and as
opposed to the Court of Chancery.
The Court of Common Pleas existed down to the end of the nineteenth
century. The fact was that,
before Magna Carta, the King often took the decisions in disputes between
his subjects as he went around the country, without involving his judges, or
his judges made the decisions but applied the lex regni.
Putting the judges into a fixed place, away from the King, achieved two
ends in particular. First, it
laid the foundation for the doctrine of separation of powers.
Judges were to be separate from the King, who made laws by royal
decree. The doctrine of
separation of powers has been much debated and developed in the eight
centuries since Magna Carta. The
separation was only gradual: at
least until the end of the eighteenth century judges could be members of
Parliament as well as holding judicial office.
Most recently, the doctrine was invoked as the principal reason for
setting up the new Supreme Court of the
United Kingdom pursuant to the
Constitutional Reform Act 2005.
The Supreme Court replaced the House of Lords, which had been the highest
court in the land since 1399, although the concept of the Lords of Appeal in
Ordinary only came about pursuant to the Appellate Jurisdiction Act 1876.
Secondly, the separation of judges from the King's court made clear
that judges were to operate independently of the King.
This led to the development of the concept of judicial independence.
Clause 45 provides that the judges were to apply the law of the realm.
What was the significance of that?
It was the law of the realm as opposed to the law of the King, canon
law or local law. I have already
explained that some judges were attached the royal court.
Other judges were people in the locality who were trusted by the
local inhabitants to try disputes or to hear criminal cases.
There were, of course, no professional judges.
The judges were often priests and so they were very familiar with
canon law, which was derived from Roman law.
The significance of requiring judges to apply the law of the realm
was that they would have to apply the law that was built up by tradition and
accepted by the population. So
the law of the realm was the law of
England, including the
law applied by local custom in different areas of
Significantly, the law of the realm was the law of the people or, as
it was and is called: the common law.
As it was put in a work known as
The Mirror of the Justices published in about 1290, it is called common
law "because it is given to all in common".
This emphasis on commonality suggests that the common law is a system
of law in which all members of society are to have a share.
Moreover, Magna Carta, by requiring judges to apply the law of the
realm, authorised the judges to apply the common law.
This was an enormous shift of power away from the King and to the
judges. In the fullness of time,
the authority to apply the common law was taken to include the authority to
develop the common law, but the judges had to exercise restraint.
They adopted a theory known as the declaratory theory of the common
law. They were loath to admit
that they were developing the common law, and instead expressed themselves
as simply declaring common law which had previously lain hidden.
This theory continued for many hundreds of years:
only comparatively recently has it been said that judges "do not
believe in fairy tales anymore, so we must accept that for better or worse
judges do make law."
It is, therefore, no longer denied that judges are developing the law
but this is always subject to Parliamentary sovereignty.
The judges cannot develop the law so that it contradicts a statute;
nor do they develop the law in an area that ought properly to be left to
Parliament, for example, because to lay down the law needs more than the
judges can do by judicial decision in a particular case.
Furthermore, by providing that any interference with an individual's
liberty had to be authorised by the law of the land, which was to be applied
by the judges, Magna Carta expressly recognised something that it is today
easy to take for granted but which is utterly fundamental, namely that every
person should have the right not to have his liberty taken away other than
in accordance with a decision of a court and due process of law.
Clause 39 outlawed detention by order of the King or, in more modern
terms, mere executive detention, not prescribed by law, for whatever reason.
And, by providing for the judicial determination of disputes, Magna
Carta laid the foundations of certainty and consistency in the law and for
the law to be administered in a public place, thus laying the foundations of
open justice for all.
The provision in clause 40 that justice would not be sold or delayed was
also a vitally important guarantee in all courts, even in the King’s Bench
and the Court of Chancery.
However, in parenthesis, it should be noted that this clause was never
applied to the sale of writs, which was an important source of revenue for
many Kings. This is an
opportunity which has not escaped elected governments in recent times as
court fees have been substantially increased for the Treasury's benefit.
However, it has been held that court fees cannot be such as to bar a person
from obtaining access to a court.
As to the barons who caused King John to apply the Great Seal to Magna
Carta, it is of course impossible to believe that they had any idea of the
epic nature of the act on which they were engaged.
They were, almost certainly, seeking to protect their own rights and
interests against excessive royal power, and possibly even to put themselves
above the law. It is now
generally accepted that when clause 39 refers to the judgment of a person by
his peers, it is in fact referring to the judgment of the barons by the
barons, and not to trial by jury.
But, once it became accepted, as it did, that it was not just the
barons but every free person who was entitled to the protection of Magna
Carta, the parallel with trial by jury was obvious. It is also to be noted
that clause 40 was not the source of
habeas corpus, which was a remedy developed by the judges.
Magna Carta was originally called the Great Charter, not because of its
contents, but because it was executed contemporaneously with a shorter
document called the Charter of the
Its execution did not mean that all was sweetness and light
afterwards. Kings continued to
err. In addition, the legal
system did not meet all the high ideals which Magna Carta suggested that it
should. Thus, for instance, the
Tudors established the Court of Star Chamber,
which acted as an immediate agent of the King's prerogative.
The tyrannical proceedings of the Star Chamber under the Stuarts,
especially Charles I, in political cases led to its abolition in 1641 by an
Act of Parliament that referred to Magna Carta and stated that cases "ought
to be tried and determined in the ordinary courts of justice, and by the
ordinary course of law".
Trial methods in ordinary courts did not meet modern standards
either, since trial by ordeal and trial by battle were for many years the
order of the day. But, over time, the ideals of Magna Carta became embedded.
Of course, no mention is made of the relationship of the common law to
statute law. That Great Council of the nation, known as Parliament, had not
yet been been convened.
When it was, it became accepted that the common law should be subject
to the will of Parliament. The
doctrine of Parliamentary sovereignty, as it is now known, is explored by
Lord Bingham in a speech which he gave in King's College,
London in October 2007.
I pose the question: why was Magna Carta so significant for the role of
judges and the administration of justice in
Quite simply, the Magna Carta laid the foundations for some of the
most fundamental concepts of our legal system.
These concepts echo two major themes, which overlap.
The first theme may be called the constitutional theme, and it
The separation of powers;
The birth of the judiciary
as a separate arm of the constitution of
The independence of the
incorruptibility of the judiciary; and
The development of the
common law, based in theory on long tradition but in reality representing
There is a second, equally important, theme based on the role of the
individual in relation to the state, involving:
The judiciary as the
bulwark of individual liberty against arbitrary action by the state;
The rule of law;
Equality before the law;
Open justice; and
Certainty and consistency
in the law.
The second theme then is all about liberty and, it might be said, the
first theme is the framework which allows the second theme to flourish.
Liberty begins historically with
liberty of the person in the sense of freedom from arbitrary arrest.
It has been developed over the centuries to include other freedoms,
such as freedom of expression and freedom of self-realisation.
Most recently, it has been developed in terms of respect for one's
home and private life.
Magna Carta thus gave us fundamental law.
It is little wonder that we call this the Great Charter of our
It is not within the scope of this study of Magna Carta to explore the
ways in which the provisions of Magna Carta, which I have set above, have
found their way into the written constitutions of many democracies around
the world but I will give one example, where it finds particularly clear
expression: the Fourteenth Amendment of the Constitution of the United
States, which reads:
"XIV. Section 1. … [N]or shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."
Magna Carta also finds clear reflection in the International Convention
on Civil and Political Rights, the Universal Declaration
of Human Rights, and the European
Convention on Human Rights. Magna Carta belongs
today, not only to
England, but to the
However, Magna Carta's high ideals depend on there being a plentiful
supply of persons capable of acting as judges and enforcing the rights which
it guaranteed, including the rights conferred by the common law.
That leads naturally to the question to which I next turn, which is:
what are the qualities required of judges?
QUALITIES REQUIRED OF JUDGES TODAY
To start with a very
basic point, the office of judge is a public office, which must be discharged in the
public interest. It is thus
important continually to review the qualities that judges require in order
to discharge their role.
It is obvious that certain qualities are required of all judges.
These include utter integrity, legal skill and knowledge, sound
judgement, courage, an independent cast of mind and an ability to act
There are also additional qualities required of judges according to the
nature of their case load.
Criminal judges, for example, need to be able to sum up to juries clearly
and correctly, and to deal with problems arising within a jury trial.
Nowadays, many judges also need to have administrative skills.
Others have responsibilities in connection with the organisation of
the legal system and keeping the rules of procedure under review, dealing
with judicial discipline and so on.
Judges play an important part in ensuring the efficient delivery of
justice, at a reasonable price, to litigants and society.
But not all judges are required to have administrative and
organisational skills. Some will
be thinkers and concentrate on developing the law and seeing the big
These are judicial qualities that are well understood and regularly
discussed. The Judicial
Appointments Commission website sets out many of the important qualities.
But there are two other qualities which are not so often mentioned
and which, it seems to me, need to be brought to the fore:
The need for judges to
have an awareness of the background to the problems they are likely to have
to deal with, which one might term “social awareness”; and
The need for senior judges to have an understanding of the case law of
courts outside the
elsewhere within the
Additional Quality One: Social Awareness
The first additional judicial quality I wish to discuss is consciousness
of the social context in which decisions have to be made today. This is
often said to be necessary because of the Human Rights Act 1998 and the fact
that, to determine rights such as the right to respect for private and
family life, courts need to make value-laden judgments.
As I pointed out in a recent judgment, however, this sort of decision
may need to be made in other contexts where the court is required by an Act
of Parliament to form a view as to whether an act was, or was not,
reasonable. In that case, the
question was whether a testatrix had not made reasonable financial provision
for her child in her will.
A decision as to what constitutes reasonable financial provision
cannot be taken in a social vacuum.
The need for social awareness arises for reasons independent of the
changes in the law wrought by the Human Rights Act 1998.
It is required because society has itself changed.
There has been a substantial increase in the number of women now
earning and contributing to the economy.
The percentage of women active economically has grown from 56% in
1971 to 70% at the end of 2008, while the percentage of men active
economically has decreased over a similar period from 92% to 78%.
Women have achieved success in many areas: in both Houses of
Parliament, approximately 22% of the members are women, and 34% of the
Senior Civil Service are now female.
There has been an increase in the percentage of the population who
are ethnic minorities. The last
census for which figures are available, the 2001 census, showed that 8.7% of
the population of
Wales was composed of
ethnic minorities, a 53% increase from the 1991 census figures.
Approximately 13% of businesses in
London alone are Asian-owned
and, despite accounting for only 4% of the population, persons of Asian
origin account for approximately 10% of the
UK's economic output.
Equally, changes in the commonly-accepted meaning of the family mean
that we have moved away from the traditional idea of a nuclear family.
Relationships are now much more varied and complex.
There have also been made immense technological developments and
advances in medical and other sciences.
There have been many other changes as well.
Many decisions, especially those made by the High Court and above,
resolve issues which have consequences far beyond the particular case in
which the judgment is given. At
the appellate levels there are many cases in which "the law runs out" and
the judges have to exercise their judgement as to how far, if at all, to
extend the law. The law has an important function to play in society, and
law should, in general, be developed to meet changing conditions. In other
words, it must connect with society.
Legal developments must, obviously, be in accordance with the law but
they should not focus on the theoretical at the expense of the socially
Changes in society increase the complexity in decision-making.
Judges must be able to explain their reasons for their decisions in
accessible language so that the important parts can be read and understood
by laypeople, and not just by other lawyers.
Judges have to balance their technical or theoretical reasoning with
the practical so that the law can be applied without difficulty.
What I am saying here chimes in with a point made by Justice Kate
O'Regan, formerly a Justice of the Constitutional Court of South Africa.
In the context of constitutional law, her thesis is that, as a matter
of judicial craftsmanship, judges must balance functional factors against
normative factors, meaning by "functional factors" the considerations
surrounding the question how the public office can be discharged if a
particular remedy is given and by "normative factors" she refers to the
values contained in the provisions of the Constitution of South Africa.
A judge must balance those two sets of factors, one against the
other, to come to a properly calibrated decision.
Otherwise, put bluntly, there is a risk that the law will not respond
to society's needs or that it will be unworkable in practice.
An awkward judgment can block what may be socially desirable
Judges must be able to demonstrate that they understand the context in
which their decisions are being made.
The judiciary, therefore, needs to understand people in different
walks of life and in different cultures.
Where possible, they should have an understanding of what solutions
are likely to work best. This is an aspect of developing the law with which
I am very familiar in a different context, having been the Chair of the Law
Commission of England and
Wales for three years,
and having been thus involved in making recommendations as to how best to
reform the law.
The judiciary also needs to have an awareness of social concerns so that
their judgments can respond to them.
To some extent, of course, social awareness may be gained by reading
up about these issues but awareness gained in this way is rarely a
substitute for that obtained by experience, and so it is most likely to be
found in those who have different backgrounds.
I am not suggesting that judges should decide cases other than
according to law, but they do need to know about social issues so as to be
able to respond to them. In the
past the judiciary has been able to decide issues using its own inner
resources but there is presently very little diversity in the judiciary, and
to compensate for this, greater weight needs to be given to this sort of
awareness. It is a quality of
which the judiciary has need.
The Neuberger Report on Judicial Diversity proposed that there should be a
requirement within the merit criterion for judges to show that they have
The view has been expressed over several decades that there ought to be
a more diverse judiciary, that is, a judiciary which is more diverse in
terms of gender, ethnicity and sexual orientation.
No one suggests that the judiciary should be precisely representative
of the population but people are bound to have more confidence that their
concerns have been properly and fully considered if the judiciary includes
people from their section of society among its own members and the
judiciary's own composition reflects the fact that those groups too play an
important role in society. This is consistent with the ancient idea to which
I have previously referred that the common law is something common to all,
and is thus something in which all members of society have a share.
Additionally, if the judiciary is more diverse, it is obvious that
different ideas will be brought to bear on the development of the law.
This will inevitably lead to a richer body of case law with more
voices heard in the development of the law. Diversity of contributions in
judicial deliberations tends to act like grit in the oyster which can
produce a pearl of great price.
In addition, diversity brings with it the added advantage of enhancing
everyone's self-awareness and knowledge of their own subconscious
One of the objectives of the Constitutional Reform Act 2005 was to
promote diversity in the judiciary, so far as consistent with appointment on
merit. Thus, the Constitutional
Reform Act 2005 imposes a duty on the Judicial Appointments Commission, the
new independent body set up to make selections of candidates to be judges in
the courts of
Wales, as follows:
Encouragement of diversity
The Commission, in performing
its functions under this Part, must have regard to the need to encourage
diversity in the range of persons available for selection for appointments.
This section is subject to section 63.
Section 63 provides that selection must be solely on merit.
But is merit a criterion which means that no weight is to be given to
diversity? As I see it, there is
little point in Parliament imposing a duty on the Judicial Appointments
Commission to encourage diversity in the pool of persons eligible for
appointment if it did not also intend that the selection criteria should be
suitable to ensure that a diverse group of candidates achieved the selection
on merit. The new “tie-breaker”
provision in the Equality Act 2010 supports this conclusion since it appears
to provide that where the representation in public office of a particular
section of society is disproportionately low, and two candidates are equally
well qualified, the selecting body may select the candidate from the
Nevertheless, the pace of change has been very slow.
The composition of the senior judiciary has not changed significantly
even in recent years. In the
High Court, the approximate percentage of women is 15.5%, in the Court of
Appeal it is 7.9%, the Supreme Court it is 8.3% and there are no women heads
The figures for women in the higher judiciary in England and Wales do
not compare well with the percentage of women achieved in other common law
apex courts which is much higher:
in the United States of America Supreme Court it is now 33% and in
the case of the High Court of Australia it is now 42% and in the Supreme
Court of Canada it is now 44%. So the achievement of greater diversity may
also be relevant to the courts’ international standing. It may be that the
Constitution Committee will reach a conclusion as to why the courts of
Wales should have
achieved so little in terms of judicial diversity.
One of the reasons may be that, at the higher levels, the existing
judiciary has a strong influence over the system of appointments and that
the judiciary is not well equipped to apply what have been the traditional
criteria for judicial appointment to the task of diversifying itself.
If this is right, then the provisions of the 2005 Act may need to be
strengthened to produce the results that were envisaged.
fundamental point to my mind is that the
judiciary are appointed to administer justice and develop the law.
One of the major driving forces in administering and developing the
law is to give dignity to all individuals affected by the law.
The public may not perceive that the best decisions are being made so
long as the judiciary appear to be drawn almost exclusively from one group
in society and so long as it appears that diversity is welcomed in principle
but is not often found in practice.
I am pleased to see that there are a number of scholars examining the
characteristics of the feminist approach to judgment writing. Those
characteristics have been found to include the fact that such an approach is
It is early days, yet, but this ground-breaking work opens up new
vistas. It challenges our
traditional view of what judgment writing involves and provides some
practical support for the view that a diverse bench would produce more
diverse reasoning and insights, and that the judgments of a diverse bench in
a particular case may produce a better balance of views. Certainly at the
appellate levels, a legal problem can often be solved in different ways, and
by looking at those different ways we can get to a better answer.
I know from my own experience that courts here and in other
jurisdictions often face the same problems but adopt different, often
equally legitimate, routes to resolving them.
To find the best solutions to legal problems we need to look at as
many different perspectives on problems as possible and thus to have judges
who can bring their different backgrounds, and their different
understandings and experiences, to bear on the resolution of legal issues.
Additional Quality Two: Understanding of Non-UK Jurisprudence
I propose to move now to the second additional quality which I suggest
is relevant at the present time, that is, knowledge of the case law of other
courts, particularly courts elsewhere in
We need today to be familiar with the jurisprudence of the two
supranational courts in
The reception of case law of these two supranational courts is an
area of study in which I am particularly interested as, in my work as Head
of International Judicial Relations for
Wales, I have particular
responsibility for relations between our courts and those of the
supranational courts. The two European supranational courts are: the Court
of Justice of the European Union (“the Court of Justice"), which sits in
Luxembourg, and the European Court of Human
Strasbourg Court"), which
These courts are frequently confused in the press and by politicians.
important point to note is of course that the
Convention is not an instrument of the European Union, but of the Council of
Europe. That is not to say that
the European Union does not now have its own human rights instrument.
Under the Lisbon Treaty the 27 member states of the European Union
have adopted the Charter of Fundamental Rights and Freedoms,
which is far more extensive than the Convention but only applies to acts
governed by European Union law.
The Convention is, however, of far broader application in terms of the
number of countries and people to which it applies.
The Council of Europe has 47 contracting states whose populations
total approximately 800 million people.
The Lisbon Treaty now provides for the accession of the European
Union itself (as differentiated from its individual member states) to the
Convention, but this has not yet taken place and leads to a new complexity
in the legal position between the Court of Justice and the
Now, it is important to make it clear that the legal status of decisions
Strasbourg court is very
different from that of decisions of the Court of Justice of the European
Union. Whilst the latter are
binding on the
the former are not, but must be taken into account, when interpreting the
In short, there now needs to be real familiarity, not just with the law
of the land, but with the legal systems of other countries in
Europe and with the case law of the two
supranational European Courts.
To varying degrees, the case law of those two courts can now properly be
described as part of the law of the land.
The provisions of the Convention include the right to life, the right of
access to court, the right to property and so on.
Like any rights document, the Convention is, in many respects,
open-textured and the
Strasbourg court has to give its
provisions meaning in concrete cases.
Thus, it is principally in the case law of the
Strasbourg Court that we
find out what the rights mean in practice.
These rights raise moral and social issues of wide dimensions.
The English courts are not obliged to apply the case law as if it
were the case law of some higher national court.
It is obliged to take that case law into account in interpreting the
Convention rights for itself. So
the courts have a choice. No doubt in most cases they would exercise that
choice in favour of applying
Strasbourg jurisprudence, but there are cases where the
Strasbourg case law seems to
take no account of some particular provision of English law or its
far-reaching consequences in English law.
How does the
Strasbourg court develop its
jurisprudence without inviting unnecessary conflict with the legal systems
of the contracting states to the Convention?
Strasbourg court applies a "consensus" test.
It considers whether the area is one on which there is consensus
among the contracting states. If
there is a sufficient consensus, that may embolden it to develop its
jurisprudence into a new area. If there is no sufficient consensus, the
Strasbourg court often finds
that the matter falls within the margin of appreciation of the contracting
states, leaving it to them to decide what view to take.
In other cases, the problem may be resolved by dialogue between the
courts – either informally through discussion of general issues in the
sphere of human rights, or formally through judgments of the respective
courts which discuss the difficulties and seek a rapprochement.
There are many techniques for resolving this conflict and each system
has to have respect for the other and a desire to reach a compromise.
there are occasions where there have
been successive judgments by the
Strasbourg court and national courts leading
to a modification by the
Strasbourg court of its position.
I was involved in a case as an ad hoc judge of the
Strasbourg court where this
occurred. The short point was
that, under the common law, to sue a public authority or indeed anyone in
negligence, it is necessary to show a duty of care. The English courts held
that there was no duty of care on a public authority in certain
Strasbourg court held that this violated the
Convention right of access to a court on the grounds that it conferred
immunity from liability. However, the English courts made it clear that this
was a misunderstanding of domestic law.
Strasbourg court, in
consequence, accepted that the duty of care requirement was simply a
mechanism for defining the circumstances in which the tort of negligence
applied. This sequence is an
example of the dialogue that can occur between a national court and the
Strasbourg court through the judgments they
give. National judges need to
understand the viewpoint of the
Strasbourg court when they frame their
reasoning in domestic cases.
There are many problems with the Convention system.
For example, the
Strasbourg court is overburdened by many cases
which it ought not to receive because they raise issues on which it has
already ruled and the contracting states ought to have, but have not,
changed their laws so as to make them Convention-compliant.
There is also an issue as to how far the
Strasbourg court should advance
human rights standards where there is a social, technical, bio-ethical or
other major change in today's world.
Strasbourg court's point of view, it has the
difficult task of deciding how fast to force change in human rights
Judge Angelika Nußberger, the German national judge at the
Strasbourg court, recently
compared the position in European human rights protection to that of a house
with many rooms where each of the rooms represents the legal system of a
contracting state. The rooms are
connected: they are all within the curtilage of a single house because we
share common legal and ethical values; and the
Strasbourg court is like a person wandering
outside, deciding whether to enter and, if so, into which rooms.
By contrast, EU law is part of the law of the land in any event.
That is the effect of the European Communities Act 1972.
We do not have a choice whether to follow EU jurisprudence, but we do
have to work at what the decisions of the Court of Justice actually mean.
It is becoming increasingly important to know how to apply EU law. It
does not simply affect abstruse areas of competition law and VAT but
subjects such as immigration and asylum, employment law and criminal law.
It is very pervasive.
There are very real problems in the reception of EU law.
The decisions of the Court of Justice express propositions in a very
concise form more familiar to civi aw jurisdictions and the national court
will have to be able to decipher how these are intended to be applied in
other situations. In addition, the decisions often use concepts and
conventions drawn from other European Union legal systems, the majority of
which have codes rather than the common law, and make assumptions which do
not apply in our system.
Accordingly, when English judges read a decision of the Court of Justice
they often have to have a different mindset. They have to have some
knowledge of other European systems and have an understanding of why the
case seems to have been decided in the way it has.
There is, therefore, an increasingly obvious need for education in EU
law and, further than that, for skills and interest in comparative law.
To interpret EU law, a judge needs an ability to move easily within
different legal cultures
These skills are, in any event, needed for English law to develop,
taking advantage of the best legal concepts and practices developed abroad.
When it comes to law, we have one of the best legal systems in the
world but that does not mean that we have a monopoly of wisdom.
Take for example the principles of proportionality.
Under the core principle of proportionality, a state measure can be
justified if it is suitable and necessary to achieve the state’s legitimate
aim notwithstanding that it interferes with an individual’s fundamental
right. To be suitable and
necessary, the measure must be a proportionate way of achieving that aim. In
our purely domestic law, it is said that a measure is only proportionate if
it achieves its legitimate aim by the least intrusive means of interfering
with the individual’s right.
Under the jurisprudence of the Court of Justice, the test of
proportionality may be applied with differing levels of intensity of review,
so that when, for instance, there is an issue of national security the court
may apply a less strict test than one which requires it to be shown that the
measure involves the least intrusive means of interference with the
individual’s right. The
principle of proportionality is applied in differing ways by the Court of
German Federal Constitutional Court
Strasbourg court, and their
ideas are being absorbed in this area by common law courts, such as the
Constitutional Court of South Africa.
Judges need to have open and inquiring minds about the benefits to be
obtained from studying concepts developed by other systems and, where
appropriate, putting them to use, with all necessary modifications, in the
English context. Judges in the
21st century need to be aware that this is an increasingly
globalised world and we need to make ourselves familiar with other legal
systems and not just "the law of the realm" in the sense of English domestic
The objects of this study of Magna Carta have been to demonstrate the
following. Viewed from the perspective of the role of the judges and the
legal system, Magna Carta was truly visionary.
It is the source of many fundamental concepts.
I have divided its achievements into two themes: the constitutional
theme and the theme related to liberty of the subject.
Magna Carta envisions a society governed by the rule of law, where
everyone is equal before the law and his or her dispute is decided by a
competent judge in accordance with the law.
It laid the foundations of the judicial role and our system of law,
for example, by insisting on the separation of powers and the independence
of judiciary and authorising the application of the common law.
These are all still relevant concepts, needed as much today as in the
But, to realise the vision of Magna Carta, we have to keep the qualities
required of the judges under review and up to date, so that they include any
additional qualities that are appropriate in today's world.
We need to update our view of what is required of judges because of
changes in society, constitutional reform and the increased relevance of
European law. We also need to
take account of the need for social awareness and the need for knowledge of
the case law of courts outside the
UK as attributes of a judge.
Because of the complexity of society, and the range of situations that
can arise in cases before the courts, there need to be different points of
view expressed on legal issues.
A source of some of those different points of views will inevitably be a
person's background, gender and ethnicity.
The broader the experiences of the judges, the deeper the
understanding of the issues they are likely to bring to the court and, by
extension, the greater the legitimacy of the courts.
Moreover, diversity cannot, by its nature, be achieved simply through
the selection of a single individual.
The selection process for judges needs to look at the portfolio of
judges at a particular tier and consider the diversity of the skill sets and
experiences of the persons who make up that portfolio of judges, and the
complementarity of their skills and experiences.
This study is not a stopping point in the debate.
The task of realising
today the vision of the judiciary contained in Magna Carta is not at the end
of the road. We are simply at a
fork in the road. But it
is an important staging post because of the recent changes in society and in
our constitutional structure. It
is now time to augment our understanding of the judicial role and to make
advances in its development.
If we do so, it will surely have been in part because of the
inspiration provided by that extraordinary foundational document – the
document we rightly call Magna Carta.
of women and ethnic minority judges in post in the High Court and in
the Court of Appeal of England and Wales as a percentage of the
posts available were as follows as at 1 June 2011, with the figures
in brackets showing the position as at 1 October 2000:
High Court :
Women – 15.5% ( 7.7 %);
BAME - 4.5%(0%);
Court of Appeal (excluding the
Lord Chief Justice, and the Heads of Division (HoDs));
7.9 % ( 8.6%)
BAME - 0% (0%);
HoDs (excluding Lord Chief
Justice): Women – 0%
(25%); BAME - 0% (0%).
The welcome appointment of Rafferty J to the Court of Appeal
with effect from 5 July 2011 will increase the percentage of women
judges in the Court of Appeal to 10.5%, thus showing a 2% increase
approximately over the percentage as at 1 October 2000.
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