Speech by Lord Justice Gross: The Judicial Role Today

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Introduction:

  1. It is a great pleasure to have been invited to give this year’s Law and Society Lecture. Earlier this year, in another lecture, I addressed the topic of “Judicial Leadership”. My subject on this occasion is the judicial role today, exploring some of its boundaries
  1. A number of different answers might be given to the question as to the judicial role today.  Some of course, border on the facetious, the confused and the wry.  The caricatures include the irascible Judge; though in times past – we are of course much better today – that was not necessarily a caricature. So the story is told of counsel in an 18th century Scottish appeal saying “I will now, my Lords proceed to my seventh point…”, the Lord Chancellor (Thurlow) riposted, “I’ll be damned if you do….this House is adjourned till Monday next”. For some politicians and parts of the media, we veer seamlessly between dinosaurs, hopelessly out of touch  to indispensable for our integrity, detachment and judgment. In an age of celebrity, apparently a job in its own right today, the very confused might suggest that was our role. However, despite the popularity of Judge Rinder and his US counterpart, Judge Judy, not to mention reality TV stars, we are not celebrities nor would we want to be.   The idea of ‘I’m a judge get me out of here’ does not bear thinking about.
  1. The more serious might suggest that the judicial role is to decide cases in court; applying the law to the facts to secure justice according to law, and doing so through the application of modern case management powers. They might also suggest it is to develop the law, subject to Parliament’s sovereign right to enact legislation to revise, amend or correct such common law developments. Others might suggest that it is to resolve political questions because, as has been said, albeit in respect of the United States – ‘Scarcely any political question arises . . . that is not resolved, sooner or later, into a judicial question’. Yet others suggest, rightly in my view, that politics is not the province of the judiciary.
  1. These answers do however point towards the true nature of the modern judicial role. The Judicial role calls for reserve.  Judges do not court public controversy, even while they may (as recent events have shown) be called upon to adjudicate on matters of controversy. I wish to examine here the nature of judicial reserve: independence from the other branches of the State while not existing in splendid isolation from them and, in particular, the ways in which the Judiciary can co-operate with the Executive in securing the effective administration of justice; further, how the Judiciary helps provide constitutional stability through the role it plays in developing the law and the limits placed on that role.  I should stress that the views expressed are my own.   I should also make it clear that I am not talking about Brexit or the Brexit litigation.
  1. As an over-arching proposition, I shall suggest that the Judiciary, as an institution, gains respect through its reserve: respect that saw the Judiciary as the third most trusted profession in an Ipsos MORI poll conducted last year (doctors and teachers were first and second. Reserve does not mean splendid – still less unworldly – isolation. We have no wish for celebrity status; we avoid public statements and courting political controversies; but we have and need a firm grasp of the world around us, even as it changes socially, politically, morally and – increasingly – technologically.  You recognise this by entitling your annual lecture, “The Law and Society Lecture”.
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