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Published online by Cambridge University Press: 15 October 2019
This paper examines the aims and challenges of ‘judicial diplomacy’ in the form of bilateral meetings between UK and supranational judges. Drawing from in-depth interviews, extra-judicial writings and other documentary sources, it argues that judicial diplomacy has become an important feature of the work of senior judges in the UK, allowing them to pursue jurisprudential and strategic aims. In jurisprudential terms, the judges have sought to improve the quality of judicial decision-making at the domestic and supranational levels. Strategically, they have striven to maintain robust inter-institutional relations and maximise their influence at the supranational level. The pursuit of these aims has taken on renewed significance in the context of Brexit but may raise questions for the protection of judicial independence and impartiality. The judiciaries should therefore consider steps to improve the visibility of these interactions and their value.
I would like to thank Phil Fennell and Jiří Přibáň for supervising the doctoral research from which this paper was developed. I also wish to thank Daniel Wincott, David Feldman, Benjamin Yong, Hélène Tyrrell, Aleks Ford and two anonymous reviewers for their constructive comments on earlier versions. I am also grateful to the Economic and Social Research Council for its support in funding this work, ESRC grant, ‘Between Two Unions: The Constitutional Future of the Islands after Brexit’, ES/P009441/1.
1 Lord Judge, Judicial Studies Board lecture (March 2010).
2 Gee et al distinguish between ‘jurisdictional and ‘institutional’ judicial power. Whereas jurisdictional power concerns the substantive decision-making powers of the courts in legal disputes, institutional power refers to ‘… the ability of the judiciary to alter its own internal arrangements, to set the agenda, to initiate and make policy on issues relating to the judiciary and courts, and the ability to shape the thinking of the other branches of government and to influence public debate’. See Gee, G et al. The Politics of Judicial Independence in the UK's Changing Constitution (Cambridge: Cambridge University Press, 2015) p 25CrossRefGoogle Scholar.
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13 ‘… [T]he Court of Justice of the European Union and the United Kingdom's highest courts shall engage in regular dialogue, analogous to the dialogue in which the Court of Justice of the European Union engages with the highest courts of the Member States’: Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018.
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19 Many such formal networks and associations now exist, such as the Network of the Presidents of the Supreme Judicial Courts of the Member States of the European Union, the Superior Courts Network (ECHR), and the Standing International Forum of Commercial Courts.
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37 Claes and de Visser, above n 11, at 111–112.
38 Law, above n 5, at 1023.
39 P O'Brien ‘“Enemies of the people”: judges, the media, and the mythic Lord Chancellor’ [2017] PL 135 at 141–142.
40 de Visser and Claes argue that face-to-face meetings between judges from different jurisdictions were historically eschewed for this reason: de Visser and Claes, above n 20, p 98.
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43 de Visser and Claes, above n 20, p 99.
44 R (on the application of Miller and Another) v Secretary of State for Exiting the European Union [2017] 1 All ER 158; R (on the application of Miller and Another) v Secretary of State for Exiting the European Union [2018] AC 61; ‘Enemies of the people’ (Daily Mail, 4 November 2016).
45 Ekins and Gee, above n 14, at 384–385.
46 Ibid, at 375, 398.
47 These interviews were conducted as part of a wider examination of the ongoing exchange of views, or ‘dialogue’, between the UK courts and the ECtHR: G Davies The Legitimising Role of Judicial Dialogue between the United Kingdom Courts and the European Court of Human Rights (PhD thesis, Cardiff University 2017).
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52 Arden, above n 12.
53 Constitutional Reform Act 2005, s 7.
54 Arden, above n 12.
55 Arden, above n 15, p 4.
56 Ibid, p 274.
57 Constitutional Reform Act 2005, Part III.
58 UK Supreme Court The Supreme Court Annual Report and Accounts (2009-10, HC 64) p 15. On the increased administrative and financial independence of the UK Supreme Court, see Gee et al, above n 2, ch 8.
59 Gee et al, above n 2, p 143.
60 Office, JudicialThe Judicial System of England and Wales: a Visitor's Guide (Judicial Office, 2016) p 52Google Scholar.
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62 Arden, above n 12.
63 Much of this information was helpfully provided by the International Team at the Judicial Office. The rest was pieced together from the ECtHR's records, available at http://www.echr.coe.int/Pages/home.aspx?p=court/president (last accessed 27 August 2019).
64 Arden, above n 15, p 315; Mahoney, above n 15, p 27.
65 D Spielmann ‘Whither judicial dialogue?’ Sir Thomas More Lecture (12 October 2015).
66 D Spielmann, Speech at University College London Graduation Ceremony (6 July 2016).
67 Spielmann, above n 65; Arden, above n 12.
68 Arden, above n 12.
69 de Visser and Claes, above n 20, p 99.
70 See the records of visits to the ECtHR, above n 63.
71 HL Constitution Committee, above n 17.
72 Interview with Justice 7 of the UK Supreme Court (London, UK, 11 July 2014).
73 Interview with Judge 4 of the European Court of Human Rights (Strasbourg, France, 29 May 2015).
74 Arden, above n 12.
75 Mak, above n 22, p 85; Tyrrell, above n 21, p 95.
76 ‘Case law can be much richer and, as a consequence, more useful to practitioners and members of the public, when it has been the subject of prior discussion between judges from different jurisdictions’. Arden, above n 12.
77 Interview with ECtHR Judge 4, above n 73.
78 Interview with Justice 5 of the UK Supreme Court (London, UK, 11 July 2014).
79 Tyrrell, above n 21, p 94.
80 Interview with Justice 5, above n 78.
81 R Clayton ‘Smoke and mirrors: the Human Rights Act and the impact of Strasbourg case law’ [2012] PL 639 at 656.
82 Interview with Justice 2 of the UK Supreme Court (London, UK, 8 July 2014).
83 R (Sturnham) v Parole Board for England and Wales [2013] 2 AC 254.
84 Ibid, at [99] (Lord Reed).
85 Interview with Justice 7, above n 72.
86 Interview with Justice 2, above n 82.
87 Barrett v London Borough of Enfield [2001] 2 AC 550 (HL) at 559–560 per Lord Browne-Wilkinson; R v Spear [2003] 1 AC 734 (HL) at [12]–[13] per Lord Bingham, [66]–[97] per Lord Rodger; Doherty v Birmingham City Council [2009] 1 AC 367 (HL) at [20] per Lord Hope, at [80]–[88] per Lord Scott; R v Horncastle and Others [2010] 2 AC 373 at [14] per Lord Phillips, at [107]; R v McLoughlin and Newell [2014] 1 WLR 3964 at [29]–[36] per Lord Thomas; R (Haney, Kaiyam and Massey) v Secretary of State for Justice [2015] 1 AC 1344 at [33]–[36] per Lord Mance and Lord Hughes.
88 Interview with Justice 1 of the UK Supreme Court (London, UK, 8 July 2014).
89 Arden, above n 15, p 286.
90 Interview with ECtHR Judge 4, above n 73.
91 Interview with ECtHR Judge 3 of the European Court of Human Rights (Strasbourg, France, 29 May 2015).
92 Lady Justice Arden ‘An English Judge in Europe’ Neill Lecture (Oxford, 28 February 2014) https://www.judiciary.gov.uk/announcements/speech-by-arden-lj-english-judge-in-europe/ (last accessed 27 August 2019).
93 Lord Kerr, above n 15, at 3.
94 Lady Justice Arden, above n 18, at 13.
95 HL Constitution Committee, above n 17.
96 Brighton Declaration 2012, available at http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf (last accessed 27 August 2019).
97 Speech by Baroness Hale in European Court of Human Rights What are the limits to the evolutive interpretation of the Convention? (Strasbourg: Council of Europe, 2011) p 18. Lord Phillips ‘European human rights – a force for good or a threat to democracy?’ Centre of European Law Lecture (King's College London, 17 June 2014).
98 For a review of the Court's development of the subsidiarity principle, see Spano, R ‘The future of the European Court of Human Rights – subsidiarity, process-based review and the rule of law (2018) 18(3) Human Rights Law Review 473CrossRefGoogle Scholar.
99 For two recent examples see R (Hallam) v Secretary of State for Justice [2019] UKSC 2; Poshteh v Kensington and Chelsea Royal London Borough Council [2017] AC 624 at [36]–[37].
100 E Bates ‘The UK and Strasbourg: a strained relationship – the long view’ in Ziegler et al, above n 15, p 67.
101 R (Osborne) v Parole Board [2014] AC 1115; Kennedy v Charity Commission [2015] 1 AC 455; A v BBC [2015] AC 588; O (A Child) v Rhodes [2016] AC 219; R (Ingenious Media Holdings plc and another) v Commissioners for Her Majesty's Revenue and Customs [2017] 1 All ER 95; C Lienen ‘Common law constitutional rights: public law at a crossroads?’ (2018) PL 649.
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103 Arden, above n 12.
104 Lord Justice Laws ‘The common law and Europe’ Hamlyn Lectures (27 November 2013); Lord Sumption ‘The limits of law’ 27th Sultan Azlan Shah Lecture (Kuala Lumpur, 20 November 2013); Lord Judge ‘Constitutional change: unfinished business’ (4 December 2013).
105 Lord Hoffmann ‘The universality of human rights’ Judicial Studies Board Annual Lecture (19 March 2009).
106 Fenwick and Masterman, above n 102.
107 Bratza, above n 15.
108 Interview with Justice 3 of the UK Supreme Court (London, UK, 8 July 2014).
109 Interview with Justice 7, above at n 72.
110 Ibid.
111 Slaughter, above n 10, pp 101–102.
112 Interview with Justice 7, above n 72.
113 Ibid.
114 Mahoney, above n 15, p 27.
115 UK Supreme Court The Supreme Court Annual Report and Accounts (2017–18, HC10 32) p 57.
116 Interview with Justice 7, above n 72.
117 Law, above n 5, at 1023.
118 A Ministry of Justice Report in 2013 noted ‘The UK did not sign or ratify Protocol 16 at this time, but will wait to evaluate the system of advisory opinions as it operates in practice’: Ministry of Justice Responding to Human Rights Judgments (Cm 8727, October 2013) 8.
119 Protocol 16 to the European Convention on Human Rights and Fundamental Freedoms. The UK Supreme Court, the Court of Appeal of England and Wales, the Court of Session, the High Court of Justiciary and the Northern Ireland Court of Appeal have expressed an interest in joining the SCN. See https://www.echr.coe.int/pages/home.aspx?p=court/network&c= (last accessed 27 August 2019).
120 HL Constitution Committee, above n 12.
121 European Union (Withdrawal) Act (EUWA) 2018, ss 2–4.
122 Withdrawal Agreement, above n 13.
123 House of Lords Select Committee on the Constitution, ‘Evidence session with the President and Deputy President of the Supreme Court’ (29 March 2017).
124 HL Constitution Committee, above n 12, Q1 (Baroness Hale).
125 Arden, above n 12; Sir Geoffrey Vos ‘The future for the UK's jurisdiction and English law after Brexit’ Legal Business Seminar (Frankfurt, 28 November 2017); Lord Justice Hamblen ‘Myths of Brexit’ Brexit conference (Hong Kong, 2 December 2017).
126 Courts and Tribunals Judiciary Guide to Judicial Conduct (2018) p 7 (emphasis added).
127 Gee et al, above n 2, p 15.
128 Interview with Justice 3, above n 108.
129 Ibid.
130 Thomas, Lord ‘Reflections of a serving Lord Chief Justice’ in Cooper, J (ed) Being a Judge in the Modern World (Oxford University Press, 2017) pp 25, 27–28Google Scholar.
131 Interview with Justice 3, above n 108.
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134 Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23; Animal Defenders International v United Kingdom (2013) 57 EHRR 21; Hutchinson v United Kingdom App no 57592/08 (17 January 2017).
135 C Gearty ‘On fantasy island: British politics, English judges and the European Convention on Human Rights’ (2015) 1 EHRLR 1 at 6.
136 R Hazell and P O'Brien ‘Meaningful dialogue: judicial engagement with Parliamentary committees at Westminster’ (2016) PL 54 at 72; R Hazell and J Wells ‘Judicial input into parliamentary legislation’ (2018) PL 106 at 127.
137 Hazell and O'Brien, ibid, at 72.
138 Daily Mail, above n 44.
139 The former ECtHR President, Dean Spielmann, spoke of the need for confidentiality as self-evident: ‘By the very nature of the exercise, the content of our exchanges is not placed on any public record’: Spielmann, above n 65.
140 Gee et al, above n 2, p 20.
141 A Sengupta ‘Judicial accountability: a taxonomy’ (2014) PL 245 at 263, citing Malleson, KThe New Judiciary: The Effects of Expansion and Activism (Oxford: Routledge, 1999)Google Scholar.
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143 Gee et al, above n 2, p 18.
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