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Maintaining Judicial Orthodoxy- Two historic judicial events held in Hilary Term 2014

ByPhillip Taylor MBE, Richmond Green Chambers

 The year 2014 began with what may well be seen as two significant and historically important events which can now be shared with readers of ‘The Barrister’ – you cannot be exempt from knowing about them even if you missed the CPD points we achieved for both of them! 

The first was a fascinating ‘off-the-cuff’ lecture on ‘Judicial Independence’ by Justice Stephen Breyer at Middle Temple; the second a formal speech by the incoming Lord Chief Justice, Lord Thomas of Cwmgiedd on ‘Reshaping Justice’ delivered to the organisation ‘JUSTICE’ at Freshfields. 

BREYER AT MIDDLE TEMPLE HALL 

The weather was dreadful outside on 5th February 2014, and the trains were not running because of a strike.  But even the rough winds of almost gale force and non-existent underground transport couldn’t deter a determined audience of assorted lawyers -- and the occasional well-known journalist -- from crowding Middle Temple Hall almost to capacity to hear The Honourable Justice Stephen Breyer, Associate Justice of the Supreme Court of the United States, deliver the ninth annual Dame Ann Ebsworth Memorial Lecture. 

And what a lecture it was!  The South Eastern Circuit sponsored the event and it was introduced by Sarah Forshaw QC, the Circuit Leader. The subject was ‘Judicial Independence’, with particular emphasis on the rule of law.  With his engagingly informal, yet no-nonsense manner, Breyer revealed, among other things, any number of historically significant anecdotes and insights into pivotal events, specific cases and judicial decisions which influenced the course of American history, not to mention world opinion, whilst cementing the concept of judicial independence. 

Take, for example, the case of Bush versus Gore.  That’s Al Gore and George Bush.  Remember them?  It was of course George Bush who eventually became President but that particular election in 2000 was a close-run thing.  You may also recall the issue of the ‘hanging chads’ spewed out by presumably faulty voting machines which imposed a giant question mark over the final result of the election.  

The split among the American electorate was 50:50.  It was about a month before the great American public, as well as the world, knew who exactly had been elected president.  With such inconclusive results, apparently unprecedented in American history, it became the responsibility of the U.S. Supreme Court to make the final decision – and indeed they did – and the rest is history. 

Obviously and inevitably, as Breyer reminded us, the decision was unpopular with half the U.S. population.  But as he pointed out, ‘there was no rioting in the streets.’  The rule of law – and public respect for the rule of law – prevailed.  In such a situation, he said, 311 million Americans have to be convinced of the value of following the judges’ decisions, even if they are unpopular. 

Going further back into relatively recent history, Breyer touched on the issue of racial segregation in the southern United States, declared ‘unconstitutional’ by the Supreme Court in 1954, but with no immediate result.  ‘Nothing happened,’ he said, until the attempt to desegregate schools in Arkansas in 1957, which floundered in the face of defiant, almost fanatical opposition led by the then state governor Faubus.  ‘I control the State Police,’ he declared -- and according to any number of reports, ‘black kids walked away in front of the Press.’ 

All of which led Eisenhower, the then President, to declare -- equally defiantly -- that ‘we have to do it’ and sent paratroops from the 101st Airborne to escort black children into the previously all white school.  The schools were then shut and for a time, nobody got educated, until eventually the schools were re-opened under a new Board of Education who collectively said, ‘back to school.’ 

‘Something had been started by those paratroopers,’ said Breyer on this historic chain of events initiated by the Supreme Court. ‘The result,’ he added, ‘was an integrated society imperfect to this day… accomplished by the judges, yes, and by other people.’  If anything, these events and their results do prove that societal change really can be brought about by legislation, even though the actual implementation of it may prove appallingly tough. 

In offering such illuminating and illustrative glimpses into American judicial history, Breyer spoke with the authority of erudition and experience.  Born in 1938 in San Francisco, he received a BA in Philosophy from Stanford University, a BA from Magdalen College, Oxford as a Marshall Scholar and a Bachelor of Laws (LL.B) from Harvard Law School.  In 1967 he became a law professor and lecturer at Harvard Law School, specializing in administrative law.  Before his nomination to the Supreme Court, he served in a number of roles, including assistant to the United States Assistant Attorney General for Antitrust and interestingly, as special prosecutor of the Watergate Special Prosecution Force in the early 1970s. He has also written an excellent book on “America’s Supreme Court” which I reviewed a while back. 

While still teaching at Harvard, he also served as a professor at Harvard’s Kennedy School of Government.  His appointment to the Supreme Court by Clinton followed the retirement of Harry Blackman in 1994.  His biographical details reveal a number of other academic achievements and also that he was the second longest serving junior justice in the history of the Supreme Court. 

Appointed by a Democratic president, Breyer’s approach to law has been described in such terms as ‘liberal’ and ‘pragmatic.’  He is a judge who regards the U.S. constitution as ‘a beautiful thing,’ but certainly a thing that ideally should be scrutinized as to its purpose and its consequences.  One of the Court’s most controversial decisions has been on the issue of abortion rights on which Breyer has consistently voted in favour.  He does not look with favour, however, on the proliferation of guns, or on capital punishment. 

Breyer parried pointed questions from the floor with the ease and the caution of the established senior judge. Of course, he gave no specifics on the matter of judicial independence which would have disappointed the keenest jurisprudents.  ‘How do you reconcile the principle of judicial independence with an elected judiciary?’ he was asked.  ‘I can’t,’ was his terse two-word reply, much to the amusement of most of his audience, who shortly afterward were reminded of the significance of Magna Carta. 

‘Those barons at Runnymede really started something,’ he might have said, but didn’t.   Instead he quoted from Rudyard Kipling’s poem, ‘At Runnymede.’  ‘Magna Carta’, he then remarked, was the first ever attack on the ‘Right Divine’, that is the divine right of kings to, as it were, rule the roost with the authority of the Divinity Himself.  It took a long time from the thirteenth century onward -- and considerable blood and tears to consign this annoying concept to history (we hope) to the point where we at least have a constitutional monarchy which the world, even the Americans, might envy. 

The South Eastern Circuit and Dame Ann Ebsworth 

Breyer’s lecture was a fitting tribute by the South Eastern Circuit to Dame Ann Ebsworth, who, had she lived would have approved of its spirit and content.  Dame Ann Marian Ebsworth was a distinguished barrister and judge who in 1992, became the sixth female High Court Judge and the first to be assigned to the Queen’s Bench Division.  She also taught advocacy at Gray’s Inn and for the South Eastern Circuit and additionally, at an annual course at Keble College Oxford. 

It is worthwhile for readers of ‘The Barrister’ to check out the South Eastern Circuit’s website for information on other forthcoming lectures and events in future and if you are a barrister in the south east, you might consider joining the Circuit.  Also, you won’t forget, will you, that next year is the 800th anniversary of Magna Carta, as Breyer and no doubt the entire American Bar Association would amiably but firmly remind you. Magna Carta was a rich theme which ran throughout his address. 

The Breyer speech sets out a special precedent establishing and confirming the orthodoxy of judicial independence which remains a cornerstone of our democratic constitutions in both the U.S. and U.K.  For many present it was a legal history lesson in how to set out the judicial stall without ever appearing partisan - Breyer did just that in a memorable performance. 

A SHORT ADDRESS BY THE NEW “CHIEF” ON A VERY BIG ISSUE: ‘RESHAPING JUSTICE’. 

And then we heard from Lord Thomas a month later. It has not been the norm for a Lord Chief Justice to deliver the type of short address I saw given on 3rd March 2014 at a meeting at Freshfields of ‘JUSTICE’ - a cross party legal organisation chaired by the splendid Baroness Helena Kennedy who never fails to impress with her passion over legal issues. 

JUSTICE was established in 1957 and became the U.K. section of the International Commission of Jurists one year later. The organisation covers representatives from all the main political parties as it seeks to advance the fair administration of justice and to persuade decision-makers by the strength of its legal research. It has a reputation for being far-sighted, independent and practical in its approach to legal reform hence the invitation to Lord Thomas on the latest initiative known as ‘Reshaping Justice’. 

Thomas had two purposes with his address which can be read in full on the judiciary website. 

He said: 

“The first is to make clear that our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the State.  It is retrenching. The budget for justice is being reduced substantially.  We must ensure that our system remains able to maintain the rule of law by administering justice effectively, speedily and impartially in this new age.  The second is warmly to welcome the re-shaping of Justice and to say how very encouraged I am that Justice in its re-shaped form can and must play a vital role in reshaping our system of justice.” 

The speech then went into some detail and some journalists picked themes afterwards mainly on the possibility that some form of inquisitorial procedure might be introduced and that a two tier Crown Court might be established.  

All well and good but the real issue was that the Lord Chief Justice had actually come out of the shadows to talk about the future of the courts and the way we do our business without damaging the concept of “judicial independence” or talking political money.  It was a brilliantly professional performance, like Breyer, with absolutely nothing given away except the contents of the speech itself, and deft handling of questions. 

What I liked of these two events, apart from the sharp intellect of both men, was the presence throughout of some forward thinking. Breyer and the Americans still revere Magna Carta in a way we British do not - that may change next year. Thomas went further (some would say he had to) by looking at the very basis of how we administer Justice in the future.  He urged us: “we must do what the Evershed committee did not. We have to keep an open mind even on radical options”. Exactly! 

This is when the ears pricked up and reference was made to the Judicature Acts and the length of time it took the Victorians to reform the administration of justice in the nineteenth century. We do not have the privilege of that length of time for reform this time round, Thomas might have said, as he sailed close to the financial wind (he had to) but the words ‘information technology’ appeared in paragraph 14 of his speech. 

This was what we wanted to hear after years of computer neglect in the Law! Since, “Reshaping Justice” has now been introduced as a research topic by a number of organisations who have sent up groups to review how we are going to administer Justice in future.  Time is not on our side unlike Victorian England so I came away from both events gratified that our model of “judicial independence” remains intact but I was delighted to see a much more modern approach as to how we will do our legal business in future whilst judicial orthodoxy is preserved.

 

 

Phillip Taylor MBE

Richmond Green Chambers 

Published in June 2014

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