Tuesday, 11 September 2018

Speech by the Lord Chief Justice in Brisbane, Australia

The Lord Chief Justice, Lord Burnett, has addressed the "Commonwealth Judges and Magistrates Association" annual conference in Brisbane, Australia.  The speech was entitled "Becoming stronger together."

Lord Burnett was principally concerned with judicial independence and his speech draws strongly on a speech in 2016 by Lord Hodge - Upholding the rule of law: how we preserve judicial independence in the United Kingdom (pdf).

Lord Burnett touches upon
the attack on the judiciary - "Enemies of the People" - when the High Court decided the Article 50 Notification case - previous post.   In that case the judges were called upon to decide how, as a matter of domestic law, Article 50 had to be triggered. 

Lord Burnett said:

The decision was that an Act of Parliament was required - a view which was contrary to much, but not all, opinion at the time.  Many thought that the article could be triggered by Ministers acting under prerogative powers relating to treaties.   The High Court's decision was upheld in January 2017 by the Supreme Court - previous post.  Parliament then enacted the European Union (Notification of Withdrawal) Act 2017 which received Royal Assent on 16 March 2017 - previous post.  The Prime Minister triggered the article on 29 March.  Such was the speed of events!

Lord Burnett also warned judges against making public comments in areas of controversy such as "no fault divorce."  In the recent case of  Owens v Owens the Supreme Court "contended itself with suggesting that the time had come for Parliament to look again at what is now rather antique legislation given developments in society over the last 50 years rather than prescribing a suggested policy solution."

The word "antique" might well be seen as itself being a statement that the law ought to be changed but that may not be a fair reading of the speech.  The legislation in question is 45 years old and there can be little doubt that attitudes to divorce have changed within an appreciable percentage of the population.  Should separated couples who had an unhappy marriage have to wait 5 years for a divorce when one party refuses consent?  That is the question that legislators will need to address.

In the Owens case, the principal judgment was given by Lord Wilson and concluded:

Lord Burnett's speech ended:

Lord Burnett is far from suggesting that judicial decisions should not be criticised.  On the contrary, he said that responsible criticism is to be welcomed.  His comments are aimed at remarks which seek to undermine judicial independence or threaten to undermine the rule of law.  "That is entirely different from criticism of our decisions, or the way we work, which is entirely legitimate, indeed not unwelcome."

Judiciary - Becoming stronger together

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