Perse Sermon 2019 Lord Lloyd-Jones
Every year, on a day at the start of October, all of the most senior judges in England and Wales gather at Westminster Abbey for a service to mark the opening of the legal year. This tradition has continued since the early middle ages. Until the late nineteenth century most of the judges simply crossed the road from Westminster Hall where their courts sat. In more modern times the High Court Judges and the Court of Appeal all travel from the Royal Courts of Justice in the Strand to Westminster – nowadays in a fleet of limousines. For us in the Supreme Court it is rather easier as our place of work is right next door to the Abbey. Led by our President, we march out of the front door of the Supreme Court, pause for photographs, and then stride across the road to join the procession into the service. We are all fully robed and we inevitably attract a great deal of attention. A few years ago, the front page of Private Eye displayed a picture of the judges processing into the Abbey in full robes and full bottom wigs with one of the judges observing to another, “If we are not careful, these super-injunctions could make us look very silly indeed”. I have actually read an academic article by an American sociologist in which she analyses at some length the symbolism of the police officer stopping the traffic in Parliament Square to enable the Justices of the Supreme Court to cross the road to the Abbey.
But, quite apart from providing an additional tourist attraction for visitors to London – which we undoubtedly do - this is a matter of some significance. For those of us who are Christians, this service is obviously important. For all of us, including those who belong to other faiths or to none, it is an opportunity to reflect in different ways on what we are trying to do in our work in the courts. I have to say that I am all in favour of judges praying for wisdom. One of my colleagues was given to observe, rather waspishly I thought, that some of us need to pray much harder than others. The truth is that we all need to pray for wisdom and strength. Those of you who have read Ian McEwan’s novel, The Children Act, or seen the film, will have some idea of what a tough job the judges have and what difficult issues we are often called upon to decide. As a result, we all need to pray for the understanding, the courage and the moral compass to enable us to do our jobs properly.
I say this because we are not simply running a legal system. We are seeking to administer justice in accordance with the law. Every judge in this country, when he or she is appointed, swears an oath or makes a solemn affirmation to do right to all manner of people according to the laws and usages of this realm, without fear or favour, affection or ill will. Over the years, I have often discussed this with my colleagues and they have invariably told me of the importance they attach to this oath and of how, when facing challenging cases or needing to take really hard decisions, they remind themselves of the oath and of what they have undertaken to do. I know that I have often had cause to do precisely this and to ask for the wisdom and the courage to do the right thing.
In all legal systems, the primary duty of judges is to decide cases and resolve disputes that cannot otherwise be resolved. The objective must be to achieve a result which accords with basic notions of fairness but which also accords with rules of law and legal principle. While it might appear an attractive approach to decide on the basis of what seems fair in the particular case, it is necessary to bear in mind that individual views of fairness can vary and that, if a legal system is not to fall rapidly into disrepute, like cases must be decided alike. If A and B have a dispute on Monday which is decided in favour of A, and C and D have a materially identical dispute on Tuesday which is decided in favour of D, something very fundamental has gone wrong. That is why I say that the objective is to do justice in accordance with the law.
In this country, (and in many others whose legal systems are derived from ours) the judges sitting in the higher courts not only resolve disputes – in itself a difficult enough task - but their decisions in those cases are also a source of the law to be applied in later cases. This adds a further dimension to the role of the judges – the judge as law maker. When considering how laws are made, it is natural that the thoughts of lay members of the public turn first to Parliament - to primary legislation made by Parliament and to delegated legislation made by Ministers under authority given by Parliament. But it is important not to lose sight of the fact that much of our law is in fact made by the judges. This is the common law: a body of judge-made law – an intricate system developed over many centuries, gradually shifting through incremental responses to meet changing needs and conditions. The Book of Daniel tells us that the law of the Medes and the Persians “altereth not” (Daniel 6:8) . It was completely immutable. That might have worked for the Medes and the Persians – although I doubt it – but it certainly could not work in a modern society. In modern times it is part of the judicial function to develop the common law to meet changing social and technological developments and the changing needs of its subjects. The judges seek to do so in a way which balances the need to reach a fair result in an individual case with the requirement of certainty in the law - the need that the law should be ascertainable and the outcome of disputed cases predictable. Here, the system of judicial precedent introduces order into what would otherwise become in Tennyson’s words, “That codeless myriad of precedent, / That wilderness of single instances” (Arlmer's Field). Decisions are binding on courts lower in the judicial hierarchy. But those inhabiting the higher branches of the judicial tree – the Court of Appeal and the Supreme Court – are called upon to take the most difficult decisions – whether to follow previous practice or whether to depart from a previous approach and to strike out in a new direction.
In addition, the judges retain the exclusive power to interpret legislation – to ascertain the intention of Parliament in enacting legislation. This is more than a mechanical function and in modern times it has proved an influential power. In particular, in recent years judges have on occasion had cause to apply the principle of legality to arrive at the conclusion that a suggested meaning is so at odds with basic considerations of fairness that Parliament cannot possibly have intended it and, if it had, Parliament would have used words which made it entirely clear.
There are, of course, limits to the powers of the judges to change the law. In our legal system Parliament is sovereign and Acts of Parliament – provided they are sufficiently clearly expressed – are binding on us all. But even within the area of judicial development of the common law, there are limits on the judicial function. There are some controversial issues which, some consider, are more appropriate for decision by Parliament than by the judges. These might include certain issues where conflicting views are held by the public as to the morality of a particular course of action. Assisted suicide and abortion are, perhaps, current examples of such cases. Here, it may legitimately be asked whether the judges – who are not elected – are necessarily in a better position than Parliamentarians to decide such issues. But while the principle is easy enough to state, it is very difficult to define where a line should be drawn. This is a matter on which widely differing views are held even among the judges themselves.
Nevertheless, the powers conferred on the judges are immense and they carry with them grave responsibilities. To my mind, one of the most terrible things the law can do is to take your children away from you. Yet, this is something that judges have to do every day of the week, in order to protect children. In the same way, judges often have to take decisions which will deprive individuals of their liberty, their homes or their livelihood.
Our justice system in this country is far from perfect. We are here concerned with human justice which is necessarily flawed. Everyone makes mistakes and the judges are just as fallible as the rest of the population. There have, as a result, been in this country unfair laws and miscarriages of justice – some of them notorious and some, no doubt, unknown save to the individuals concerned. The fact that perfection is unattainable in any system of human justice is, however, not a reason to be complacent. On the contrary, it is essential that legal systems should incorporate safeguards against such error and it is necessary for judges to be constantly vigilant against the risk of a miscarriage of justice.
It is highly fashionable nowadays to speak about the rule of law. Although the term has certainly been used since the 1880s it is now very frequently invoked. Thus, for example, in 2009 President Obama in a BBC interview identified the rule of law, alongside democracy, freedom of speech and freedom of religion, not simply as principles of the West to be foisted on other countries, but as a universal principles which all nations can embrace and affirm as part of their national identity. In this country, the Constitutional Reform Act of 2005 provides in section 1 that it does not adversely affect “the existing constitutional principle of the rule of law” and in section 17 it requires the Lord Chancellor, on taking office, to swear to protect the rule of law and defend the independence of the judges. We have had rather a lot of Lord Chancellors recently. I have attended the swearing in of at least the last six. I’m afraid I have lost count.
But what do we mean when we refer to the rule of law? Lord Bingham, one of the greatest judges this country has produced, examined this in detail in his magisterial study on the rule of law published in 2010. He identified a number of features indispensable to the rule of law. These include that:
• The law must be accessible and, so far as possible, intelligible, clear and predictable.
• Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
• Public authorities should act within the powers conferred on them.
• Means should be provided for resolving disputes.
But, pausing there, a legal system could possess these qualities and yet be totally lacking in virtue. As Lord Bingham puts it:
“A state which savagely represses or persecutes sections of its people cannot … be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.” (Tom Bingham, The Rule of Law, 2010)
The modern concept of the rule of law surely requires some moral content. Lord Bingham finds this in principles of human rights and in the principle of equality before the law. It is only if a legal system provides protection for fundamental human rights that it can be considered to embody the rule of law. In this way respect for rights such as the right to life, freedom from torture, freedom from slavery, the right to liberty and security, the right to a fair trial, freedom from punishment without law, the right to respect for family and private life, freedom of thought and religion and freedom of expression becomes an essential element of the rule of law. These rights are proclaimed in instruments such as the Universal Declaration of Human Rights and the European Convention on Human Rights and Fundamental Freedoms. The precise scope of those human rights which must be considered fundamental may be open to argument at the edges - there are, for example, some important differences here between the ECHR and the EU Charter of Fundamental Rights - but there is certainly general agreement among most nations on the core requirements, even if they do not abide by them.
The judges – the bees working away in the hive - may have created a great structure in the common law, but it is worthless unless it is a just system. While all legal systems have to adapt to meet changing technological and social developments, there are some moral imperatives which should remain constant and fundamental in any legal system. In fact, the common law has developed over the centuries its own principles of fairness and justice. In our enthusiasm for the European Convention on Human Rights following the Human Rights Act of 1998, it is important not to lose sight of the fact that the common law also seeks to uphold these basic rights and freedoms, albeit perhaps in different ways.
Christianity has played a major role in the development of the common law, not least because it has been an inspiration to generations of judges. Sir Matthew Hale was a leading judge in the seventeenth century who was in turn a Justice of the Common Pleas, Chief Baron of the Exchequer and then, from 1671 to 1676, Chief Justice of the King’s Bench. In the 1660s he compiled a list of “Things Necessary to be Continually had in Remembrance”. His list of eighteen points includes some very sound practical advice for judges concerning the conduct of judicial office which remain valid some three and a half centuries later. For example, he reminds us to be impartial and dispassionate, favouring neither rich nor poor, and not to rush to judgement but to wait until we have heard all sides of a case. He acknowledges that in matters of violent crime the interests of the criminal must be weighed against those of the public and the victim and that severe penalties may be required. He also reminds us that where the balance is equal we should be inclined towards mercy. He charges us to be just, regardless of public opinion.
The last resolution even provides a glimpse of his sense of humour:
“18. To be short and sparing at meals that I may be fitter for business.”
But the foundation on which all his resolutions are based is his Christian faith:
“1. That in the administration of justice, I am entrusted for God, the King and Country; and therefore:
2. That it be done (1) Uprightly, (2) Deliberately (3) Resolutely.
3. That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.”
This influence continues today. It is no coincidence that the parable of the Good Samaritan was prayed in aid in one of the most significant developments in the common law in modern times. The case will be well known to those of you reading law. The appellant alleged that she and a friend went to a café in Paisley where her friend bought her a bottle of ginger beer. The bottle was opaque and she had no reason to suspect that it contained anything other than ginger beer. The proprietor of the café poured out some of the ginger beer into a glass which she drank. However, when she poured the remainder of the contents, a snail in an advanced stage of decomposition floated out of the bottle. It was alleged that as a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger-beer which she had already consumed, the appellant suffered from shock and severe gastro-enteritis. She sued the manufacturer of the ginger beer, notwithstanding that she had no contract with him. The resulting decision of the House of Lords in Donoghue v Stevenson (1932) became a landmark case of the twentieth century. The question was whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, was under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. In a famous judgment, Lord Atkin observed that he did not think that a more important problem had occupied their Lordships in their judicial capacity. Drawing on the dialogue between Christ and the lawyer related in St. Luke’s gospel , he asked “Who then, in law, is my neighbour?” (Luke 10:25-37) Lord Atkin’s answer was as follows:
… [I]n English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, “Who is my neighbour?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
As Lord Atkin pointed out, the resulting neighbour principle at common law is, of course, necessarily more limited than Christ’s moral injunction to love one’s neighbour, but its moral foundation is clear. It has been enormously influential and, reshaped and refashioned by other decisions over the years, it continues to provide the foundation of a tort of negligence of extraordinary breadth.
I am not suggesting that the teachings of Christianity are the only possible touchstone of appropriate judicial conduct or the only possible inspiration for the required moral content of the law. Clearly, they are not. Many of my judicial colleagues belong to other faiths from which they draw inspiration. The Old Testament, for example, in the First Book of Kings provides in Solomon the model of a wise and subtle judge (1 Kings 2.10-12, 3.3-14). Many other judges are not motivated at all by religious beliefs. They are quite simply decent men and women dedicated to maintaining the rule of law and to doing justice according to the law. I have great admiration for them all, both as judges and as human beings. But it does occur to me that it would be difficult to find a better foundation for what we are all seeking to achieve than the teachings of Jesus Christ with their emphasis on the sanctity of human life, the value and worth of each individual and the duty to love one’s neighbour.