Brexit Means it’s Time to Reinvest in the Judiciary and our Courts

Keith Sinclair March 5, 2017 0
Brexit Means it’s Time to Reinvest in the Judiciary and our Courts

If you were to ask, ‘what was the defining characteristic of David Cameron and George Osborne’s tenure in Downing Street?’ the response would likely be ‘deficit reduction.’ Emerging from the financial-crisis, ready to capitalise on Labour’s failure to put in place effective damage control, the Conservatives have ridden a wave of electoral success since. I don’t know if anyone else has noticed, but they haven’t kept quiet about it.

What is clear however, is that this angle will very soon run out of steam. Management of the country’s coffers, balancing the books and attempting to stimulate growth have all occurred against the backdrop of certainty provided by the UK’s continuing membership of the European Union. Whether you were a ‘leaver’ or ‘remainer’, business tends to do better when faced with the status-quo. Our membership provided a safety-blanket which has since been yanked away by the referendum, leaving the economy cold and confused. But, squinting into the sunlight of an age outside of the EU, pondering our next move, it is clear we should give serious thought to the things that matter most if we are to be a beacon of commerce and free-trade outside of Europe.

Undoubtedly, one of these is our courts. Businesses from around the world choose to contract under the law of England and Wales for its unrivalled certainty, holding caveat emptor as it’s guiding principle, combined and the effectiveness of our courts and sheer respect received from around the world. The English legal system is one of our most valuable assets when seeking to attract investment from overseas. However, over the previous decades, it is clear this has been heavily supplemented by the jurisdiction of the European Court of Justice (ECJ). Cherie Blair QC recently commented in The Times that our own courts will soon emerge from behind the ‘camouflage’ provided by European judgements. Meaning, that the judiciary will once again be at the forefront when administering justice and move substantially into the public’s focus. Thus, it is more important than ever we have a first-class judiciary and an effective court and tribunal service.

This is why I am particularly concerned about public perceptions of the judiciary following the Miller case and the appointment of Liz Truss as Lord Chancellor, who appears focused on micro-management and penny-pinching, with little regard for the role the courts actually play, and the steady erosion of the lucrative prospects offered by a career as a judge.

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Those further to the right often make the argument against our ‘non-elected’ judges, but this is to miss the point entirely – an elected judiciary would merely make the bench into politicians, subject to all the risks of influence and foul-play whilst being and accountable to no-one in particular. If judges lack the confidence of the public and become subject to ridicule and abuse, the rule-of-law is undermined. To have credibility and effectively preserve this pillar of our constitution, judges must remain outside the political process. When faced with a headline reading ‘enemies of the people’ and a Lord Chancellor who explains her failure to defend the judiciary on the basis of being torn between defence of the judiciary and defence of a free-press, it erodes this essential confidence. The last time this writer checked, the later was not in the Lord Chancellors job-description. Liz Truss has either forgotten or simply doesn’t realise there are in-fact two pillars to the UK’s constitution: democracy; and the rule-of-law. If the media continues to wage a campaign against judges, without the defence they are constitutionally entitled to, how can the public, let alone foreign-investors who rely on the certainty of the law that creates, look to the courts with confidence?

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However, the government has made some tokenistic moves towards improving judges’ lot – the recently published Prisons and Courts Bill seeks to digitise the court process in both civil and family matters and proposes improved facilities for judges. This illustrates that the government is seeking to minimise the impact of substantial cuts to the court system more generally, most notably the cuts to judges pay and pensions. Indeed, President of the UK Supreme Court, Lord Neuberger, in a recent speech noted the increasing reluctance of lawyers to become judges on the basis of an ever-expanding administrative role, increasing case-loads and decreasing pay and pension privileges. As such, remaining in private practice remains substantially more lucrative and deters the absolute best lawyers who should be administering justice to us all. It is characteristic of Truss to think that simply by throwing computers at a problem, in the belief that judges will be able to deal with the greater work-load more quickly, that somehow the problem will go away. If there are not sufficiently numerous, first-class judges on the bench in the first instance, no amount of technology will save public and investor confidence in the judiciary and the ability of our courts to administer justice.

To quote Lord Neuberger briefly: ‘a first class judiciary underpins the whole financial and professional services industries which are so vital to the fortunes of this country, perhaps particularly in the post-Brexit world.’ This writer is inclined to agree. Whilst reducing government expenditure more generally was a good thing within the context of our continuing membership of the EU, where the context of economic growth was underpinned by the laws determined by the ECJ, the prospect of Brexit should prompt the government to be far more pragmatic. Indeed, unlike many areas which may be taken on by market forces, the courts and the judiciary may only be administered by the state. As such, it is right that the government should recognise the importance of attracting the best by restoring pay and pensions accordingly. Thankfully, on 2 March, the Lord Chancellor announced a review into judges’ pay and pensions, responding to a survey in which only 2% of respondent indicated they felt valued by ministers. Perhaps this will be the turning point? Whilst it is conceded that judges are certainly paid well by normal standards, it is imperative that they are also paid competitively. Doing so would benefit us all – attracting investment from those who wish to contract under English law whilst also returning public confidence in our courts. The time for austerity of the law is over.

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