Virtual House of Lords Annual Reception Monday 31 January 2022

The Society’s House of Lords Annual Reception 2022’

This year ‘The House of Lords Annual Reception’ took place as a hybrid event virtually and in person from the Athenaeum Club, London, as the original intended River Room location was suspended due to the pandemic.

The President, Ian Forrester, welcomed all members and guests.

A Patron since launch in 1990,

The Right Honourable the Lord Hope of Craighead

introduced

HE Ambassadrice Catherine Colonna, Ambassadeur de France in the UK.

The Ambassadrice gave the opening address in French. As it was the last day of January, as it was within the French tradition, she wished all a Happy New Year – une Bonne Année 2022! She followed by expressing her congratulations to the Society for its unique continuing contribution over thirty-three years to relations between France and the UK in the legal area. The importance of our joint values of justice, democracy and the Rule of Law. She re-confirmed her personal support as Patron and Ambassador and the support of the French Embassy in the UK.

A copy of her address is available below in English and in French – we version francaise www.ajfb.eu

The President thanked the Ambassadrice warmly and introduced The Right Honourable Lord Hodge, Deputy President of the Supreme Court of the UK. Lord Hodge gave the legal talk entitled ‘Contemporary Controversy – the Judicial Development of Public Law’.

He began:

‘At a time when the UK Government has been conducting reviews of Administrative Law and of the Human Rights Act and has expressed an intention to review the relationship between the judiciary, the executive and Parliament, the development of public law by judges can be seen as a subject of contemporary controversy. Tonight, I seek to set this development in its historical context.

Judges are sometimes criticised for developing the law, as if the law were a fixed set of rules which did not, and should not, adapt to social change. That is misconceived.’

The full text of Lord Hodge’s the legal talk is available below in English and, also in English on the website – version française www.ajfb.eu

The appreciation on behalf of the Society was given to Lord Hodge by Simon John Horsington, Vice-Président d’Honneur, founder. He said the talk was an historical analysis and reference for all, especially students, a seminal contribution to this important debate or ‘contemporary controversy.’ Particularly his comments on the separation of powers reminding of the visits of Montesquieu to London and the impact of that principle.

The Society’s UK Academic Award was introduced by the Academic Director, Vivienne Forrest. She explained that the annual Award was made to a UK University with a combined UK-France law course. The financial award was then made over the ensuing years to a student who had made special achievement and contribution in respect of France and the UK. She then handed over to Lord Hope to announce the winner for 2022. He announced the University of Strathclyde course and presented the Award and the Certificate to Professor Claire McDiarmid. The Professor expressed that the university and course were honoured and privileged to receive the Award. Alice Flynn, a student on the course, added how those on the course appreciated the Award. She spoke in French from Toulouse University one of the French partners of Strathclyde University in the course.

The reports from the Vice-Presidents and Presidents of the Section committees of the Society were introduced by Simon John Horsington. The Presidents were: Leonardo Carpentieri, London; Frederic Goldberg, Paris; David Guild, Edinburgh; Fionnuala Connolly, Belfast.

After the reports, the President introduced, demonstrated, and explained some of the important revisions in progress for updating the Society’s website with the web consultant. This initiative would be adding benefit to the Society and its members.

He then gave his detailed report on the Society’s past year’s activities and achievements. He introduced its exciting Programme for 2022 and specific events, listed on the website. He thanked his team of directors, officers, and committees. He thanked all the speakers, participants, and organisers of events in 2021 and members for their support, including this Annual Reception. He looked forward to moving forward not only with virtual or hybrid events but specific events in person again.

Concluding remarks by Simon John Horsington

Concluding remarks by Simon John Horsington expressing the great appreciation of the Society to the President for his dedication to the Society last year and throughout the pandemic. He mentioned the President’s leading talk given from the Premiere Chambre of the cour de cassation in Paris on the invitation of the Patron Première Président, Chantal Arens. The chamber where the Society was hosted and launched in 1990. The President thanked all those involved in preparing and running the Annual Reception, to the French Embassy, and to all speakers. He thanked all and hoped they would put Monday 30th January 2023 in their diaries for the House of Lords Annual Reception 2023!

After the hybrid event closed, the President hosted the traditional President’s dinner for those present in person at the Athenaeum Club once more, as before the pandemic in January 2020. The Society’s first social event, a convivial event opening in the new year of 2022.

Association des Juristes Franco-Britanniques –

Franco-British Lawyers’ Society

Virtual House of Lords Annual Reception

Monday 31 January 2022

Text of the Opening Speech by

HE Ambassadrice Catherine Colonna, Ambassadeur de France to the U.K.

HE Ambassadrice Catherine Colonna, Ambassadeur de France to the U.K.

Lord Hope (of Craighead)

Mr President, Lawyers, Lords, ladies et gentlemen,

Dear friends,

I’m very pleased to be with you this evening, even though the health situation has once again forced us to meet virtually. As it’s still January and still possible to make New Year’s wishes, my wish is that we’ll be able to meet in person next year, as we did two years ago.

The fact that this reception is being held testifies to the solid friendship between France and the United Kingdom when it comes to the law and justice, of which your society has been both a mainstay and a symbol for more than 30 years.  It’s important to me.

Your society boasts representatives from every legal profession: judges, lawyers, notaries, jurists, barristers, solicitors and a diverse range of committees: England/Wales, Scotland, Northern Ireland and France. Throughout 2021, it demonstrated its vitality and inventiveness by contributing to discussions about access to the law and justice, at a time when the Trade and Cooperation Agreement between the European Union and the United Kingdom had begun to be implemented.

Keen to address the legitimate need for information on the new treaty frameworks now applicable between our two countries, you organized two seminars, one on the impact of Brexit in terms of family law and the other to present new cooperation tools in the criminal, civil and commercial fields. I have no doubt those seminars were invaluable to your members for understanding the radically new framework of the bilateral relationship. And talking of that relationship, may I repeat that we’d like it to be trustful, calm, rational and constructive, and also that we’re determined to make progress along that path in 2022, even more than in 2021.

Indeed, beyond political and treaty links, the ties uniting our two countries testify to a deep commitment to the shared values of freedom, tolerance and openness to the world, and we face the same challenges: terrorism, migration, climate change, and protecting individual freedoms in the context of a global pandemic, to mention but a few. In this regard, I’d like to stress how excellent the recent discussions were between the Conseil d’Etat and the Supreme Court on several issues of common interest: states of emergency, the rule of law during the pandemic, online courts, and immigration law.

A few weeks ago, France took over the presidency of the Council of the European Union. In that capacity it will champion a Europe that protects its citizens in the broad sense, including from all forms of intolerance, discrimination and hatred, and all forms of violence – particularly violence against women. Generally it will place great priority on the rule of law and the protection of our values and democracies: it will even devote a special informal Council to these at the beginning of March.

Another example, and an important one at that: France also upholds a legal system which foresees the climate threat and can address it by incorporating into law binding targets whose implementation can be overseen by a judge . This is another issue of concern to you.

Your society also shows dynamism and openness to younger generations. I understand that the legal careers forums held in France and the UK were, once again, a success and that the UK Academic Award will be presented at this annual reception.

I’d like to conclude by reiterating my commitment, and that of the Embassy services (the Chancery, the Defence Department and the Liaison Judge) to what you do. I sincerely thank you for the action you carry out, and I renew the French Embassy’s support in addressing new challenges, of which there will no shortage in 2022!

 

Association des Juristes Franco-Britanniques –

Franco-British Lawyers’ Society

Virtual House of Lords Annual Reception Monday 31 January 2022:

Texte de l’Ouverture par

SE l’Ambassadrice Catherine Colonna, Ambassadeur de France au RU

Lord Hope (of Craighead)

Monsieur le Président,

Mesdames et Messieurs les juristes,

Lords, Ladies et Gentlemen,

Chers amis,

Je suis très heureuse d’être parmi vous ce soir, même si  une nouvelle fois,  la situation sanitaire nous oblige à une rencontre virtuelle. Comme nous sommes encore en janvier et qu’il est encore possible de faire des vœux, je frome celui que nous puissions nous retrouver en personne l’an prochain, comme nous l’avions fait il y a deux ans.

L’organisation de cette réception  témoigne de l’amitié solide entre la France et le Royaume-Uni en matière de droit et de justice, dont votre association est à la fois le soutien et le symbole depuis plus de trente ans. Elle compte pour moi.

Riche des représentants juridiques de toutes les professions du droit : magistrats, avocats, notaires, juristes, barristers, sollicitors, riche de la diversité de ses différents comités, Angleterre / pays de Galles, Ecosse, Irlande du Nord, France, votre association, témoignant de sa vitalité et son inventivité a contribué tout au long de cette année 2021 qui vient de s’achever aux réflexions d’un accès au droit et à la justice, dans un contexte marqué par le début de la mise en œuvre de l’accord de commerce et de coopération entre l’Union européenne et le Royaume-Uni.

Soucieux de répondre au besoin légitime d’information sur les nouveaux cadres conventionnels désormais applicables entre nos deux Etats, vous avez organisé deux séminaires, l’un sur  les impacts du Brexit en matière de droit de la famille et l’autre sur la présentation des nouveaux outils de coopération en matière pénale, civile et commerciale. Je ne doute pas que ces séminaires aient été précieux à vos membres pour comprendre le cadre profondément renouvelé de la relation bilatérale. Permettez-moi, puisque je mentionne notre relation bilatérale, de répéter que nous la souhaitons confiante, sereine, rationnelle, constructive, et aussi que nous sommes déterminés à progresser dans cette voie en 2022 encore davantage qu’en 2021.

En effet les liens qui unissent nos deux pays, au-delà des liens politiques et conventionnels, sont un attachement profond aux valeurs communes de liberté, de tolérance et d’ouverture au monde et nous sommes confrontés aux mêmes défis : terrorisme, mouvements migratoires, changement climatique, et  protection des libertés individuelles dans un contexte de pandémie mondiale, pour n’en citer que quelques uns.  A cet égard, je souhaite souligner la qualité des échanges intervenus récemment entre le Conseil d’Etat et la Cour suprême sur plusieurs sujets d’intérêt commun : les états d’urgence, l’état de droit pendant la pandémie, la justice virtuelle, le droit des étrangers.

Depuis quelques jours, la France  a pris la Présidence du Conseil de l’Union européenne. Elle y défendra une Europe qui protège ses citoyens, au sens large et notamment les protège de toutes formes d’intolérance, de discrimination et de haine, ou de toute forme de violence -et particulièrement les violences faites aux femmes-, et en général elle fera une forte priorité de la question de l’Etat de droit, de la protection de nos valeurs et de la protection de nos démocraties : elle y consacrera même un Conseil informel spécifique, au début du mois de mars.

Autre exemple et non des moindres, la France défend  aussi un droit qui anticipe et qui puisse répondre au défi climatique, en inscrivant dans la loi des objectifs contraignants dont le juge peut contrôler l’exécution. C’est un autre sujet auquel vous êtes sensibles.

Votre association témoigne aussi d’un dynamisme  et d’une ouverture aux jeunes générations. Je crois savoir que les forums des carrières juridiques organisés en France et Au Royaume -Uni ont été, une nouvelle fois  un succès et que le prix du UK Academic Award sera remis au cours de cette réception annuelle.

Je voudrais conclure en rappelant mon attachement et celui des services de l’Ambassade (la Chancellerie, la mission de défense et le magistrat de liaison) à vos actions.  Je vous remercie vivement pour l’action que vous menez et renouveler le soutien de l’Ambassade de France pour les nouveaux défis qui ne manqueront pas en 2022 !

 

Association des Juristes Franco-Britanniques –

Franco-British Lawyers’ Society

Virtual House of Lords Annual Reception Monday 31 January 2022:

Contemporary Controversy – the Judicial Development of Public Law[1]

Le Défi Contemporaine – l’Evolution de la Loi Publique du RU

___

The Rt Hon Lord HODGE QC PC,

Deputy President of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland.

 

Introduction

  1. At a time when the UK Government has been conducting reviews of administrative law and of the Human Rights Act, and has expressed an intention to review the relationship between the judiciary, the executive and Parliament, the development of public law by judges can be seen as a subject of contemporary controversy. Tonight, I seek to set this development in its historical context.
  2. Judges are sometimes criticised for developing the law, as if the law were a fixed set of rules which did not and should not adapt to social change. That is misconceived. Lord Nicholls explained the judicial role, saying:

For centuries judges have been charged with the responsibility of keeping [the common] law abreast of current social conditions and expectations. That is still the position. Continuing but limited development of the common law in this fashion is an integral part of the function of the judiciary.[2]

  1. That responsibility is discharged in the field of public law against the background of the UK’s largely unwritten constitution which has as its two pillars the sovereignty of Parliament and the rule of law. Supporting those two pillars and enabling the executive branches of government[3] to perform the difficult task of administering the country effectively, is a third principle, the separation of powers. This principle calls for clear-eyed recognition of the limits on the role of each branch of government, including the judiciary, and a shared respect for the roles of each branch.
  2. It is beyond doubt that the judicial development of administrative law in the second half of the twentieth century has been a very significant development of the common law. But, contrary to the views of some commentators, it has not involved a major departure from established legal principles. Instead, I view it as the incremental application and development of pre-existing principles in changed circumstances and in response to developing social needs.

The rule of law and constraints on judicial decision-making

  1. All public bodies are bound to comply with the law, and recourse to the courts must be possible when they do not. These are essential characteristics of a healthy democracy and a fundamental part of our constitution. The principle that the executive branches of government should be subject to the rule of law is a principle which has ancient origins. It is now recognised as a fundamental constitutional principle in s 1 of the Constitutional Reform Act 2005.
  2. Judicial review proceedings are challenges to the lawfulness of the exercise of power by public bodies. Sometimes a court’s decision in such a review is politically controversial because the challenged decision is itself a matter of controversy. However, as the courts themselves have emphasised, “judicial review is not, and should not be regarded as, politics by another means.”[4] Judges endeavour in good faith to arrive at the correct legal solution to the legal dispute before them.
  3. Judicial review proceedings must be understood in the context of the two long-established constitutional principles of fundamental importance. First, it is part of the rule of law that public authorities must exercise the powers conferred on them in accordance with the law. The second is that ultimate sovereign power resides in the Queen in Parliament. The Government and other public authorities therefore require authority for the powers they exercise. That authority is normally conferred by parliamentary legislation.[5]
  4. The courts perform the vital function of deciding disputes as to whether the Government and other public authorities have exercised their powers, and fulfilled their duties, in accordance with the law. This function does not set the courts in opposition to the Government. They share a common commitment to the maintenance of the law. Ministers and their officials do not set out to break the law. Judgments upholding challenges to governmental action do not normally criticise the Ministers or officials involved. The pressures under which decisions have to be taken are understood.
  5. There are important constraints on the judicial development of the law. There are many matters which should be left to democratic legislatures to resolve. Such matters include contestable and contested choices in social and economic policy; decisions which may have major consequences for public expenditure and the allocation of public funds; where a detailed legislative code is required; or if a legal development would have wide or unforeseeable ramifications; and matters which affect large sections of the community and raise issues which are the subject of controversy. Matters, as Lord Sumption has argued in his 2019 Reith Lectures, which involve moral choices on which reasonable people may reasonably disagree, require political compromises or resolution by collective political choice through the work of democratic legislatures.
  • A particular constraint on any judicial law-making, which applies as much to public law as to private law, is the rule of law requirement that the law must be accessible and, so far as possible, intelligible, clear and predictable. Respecting legal precedents achieves those ends and constrains judicial innovation.

The judicial development of public law

  • What the rule of law now demands in the field of administrative law is in large measure the product of the judicial development of the common law, to which I now turn.

(i) Ultra vires

  • The concept of ultra vires is an ancient concept. But the period between the late 1940s and the mid-1980s saw prodigious legal developments in the field of administrative law, bringing a degree of coherence to the law which had previously been lacking.
  • In each of the landmark cases in judicial review in the latter half of the twentieth century, the courts were seeking to make sure that public officials, on whom Parliament had conferred powers, were exercising their powers in the way in which Parliament had laid down. That is consistent with the principle of Parliamentary sovereignty. It is fair for judges to conclude that the relevant legislation did not permit those to whom it gave power to take account of irrelevant considerations, make perverse decisions, adopt unfair procedures, or frustrate the policy of the legislation.
  • Another innovation which began its development in this period is the doctrine of legitimate expectations. This doctrine is part of the doctrine of ultra vires and is justified by an assumption that the powers which Parliament conferred on a decision-maker should be exercised in a reasonable manner and in accordance with the principles of good administration.
  • In recent years the courts of the UK have been subjected to criticism for two decisions relating to the boundary between parliamentary power and the prerogative in the context of the hard-fought political debates over the UK’s decision to withdraw from the European Union. In the first the Supreme Court held that the government needed to obtain the authority of Parliament to invoke art 50 of the Treaty on European Union to commence the formal process of withdrawal. The second raised the question whether the Prime Minister’s advice to HM the Queen to prorogue Parliament in a time of political crisis was amenable to legal challenge by way of judicial review or was non-justiciable. The Supreme Court unanimously held that it was amenable to such challenge and declared the prorogation unlawful.
  • The merits of those decisions have been the subject of extensive debate. It is not appropriate for a Justice who was on the panel which determined those appeals to defend the outcomes on their legal merits. That must be left to others. But I have to say that judgments such as these were not influenced by the personal views of individual Justices on the merits of Brexit. That is wholly inconsistent with the judicial role: judges must leave their personal views on such policy outside the door of the court.

(ii) The principle of legality

  • Another source of recent controversy is the principle of legality. In its traditional form it is the rule that a statute needs to use clear and express words, or there must be a necessary implication of statutory terms, to displace vested private law rights. There has also for a long time been the prima facie assumption, which the courts make when interpreting a statute, that Parliament takes for granted long-standing principles of constitutional and administrative law.
  • Since the 1980s, the courts of the United Kingdom have come to recognise both that there are some fundamental common law rights which Parliament can override only if it is clear that that is a purpose of the statute and that there are some domestic law rights that are of greater importance than others and whose protection requires a closer judicial scrutiny than other rights under the Wednesbury principles. As Lord Hoffmann explained, Parliament, although sovereign, is presumed not to legislate against the basic rights of the individual. As a result, such rights cannot be overridden by general or ambiguous words in a statute.[6]
  • The development of the principle of legality as the basis for a more intensive scrutiny of the interference by public authorities with what the common law recognises as constitutional or fundamental rights occurred principally in the period between the early 1980s and 2000, when the Human Rights Act 1998 (“HRA”) came into operation. There was a hiatus after the HRA came into effect, during which judges appear to have focused on an analysis of fundamental rights through the prism of the Convention rights which it incorporated into our domestic law. But in several more recent cases judges have invoked the principle of legality as part of their reasoning.
  • For example, in UNISON,[7] the Supreme Court upheld a decision of the Court of Appeal in striking down as ultra vires a fees order which was shown to have interfered with the constitutional right of access to the courts. Where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is subject to an implied limitation: the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve.
  • The Supreme Court similarly invoked fundamental principles of constitutional law in Miller II, the prorogation case. The principles in question were those of Parliamentary sovereignty, and Parliamentary accountability, ie the accountability of ministers to Parliament for the conduct of government. Following its approach in UNISON, the court held that the advice to prorogue would be unlawful “if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.”

Parliamentary initiatives which have enhanced the role of judges in public law

  • So far, I have been addressing developments of the common law. There are also three Parliamentary initiatives which have enhanced the role of judges in making public law, and two of which have provided for the application of new legal techniques.

(i) European Communities Act 1972

  • The accession of the United Kingdom to the European Economic Community on 1 January 1973 involved the acceptance of a new source of law in the form of the new legal order which prevailed over the legislation of the United Kingdom Parliament. The power which Parliament gave the judiciary new powers to disapply or re-write the legislation of the UK Parliament was a unique legal development. Among other developments within the sphere of EU law the UK courts have been required to adopt approaches which have differed from our traditional domestic public law, including novel techniques of interpretation and the adoption of a proportionality test to reconcile conflicting rights and norms.

(ii) Human Rights Act 1998

  • The second significant Parliamentary innovation is the HRA, which incorporated into domestic law the Convention rights listed in section 1(1) of the Act and set out in Schedule 1 to the Act.
  • The HRA carefully preserved the sovereignty of the UK Parliament: the courts cannot invalidate or disapply its primary legislation. Instead, the HRA provides that both primary and secondary legislation “must be read and given effect in a way which is compatible with the Convention rights”, and this has involved a very muscular manipulation of legislative texts. That has caused some controversy. Where it is not possible to interpret a provision to make it compatible, section 4 provides that specified senior courts may make a declaration of incompatibility. Such a declaration does not affect the validity, continued operation and enforcement of the provision but leaves it to the UK Parliament to decide whether to act to remove the incompatibility.
  • Parliament has also given the courts an evaluative task of assessing whether the legislative or executive measures in question are a proportionate means of achieving a legitimate aim. In some cases, particularly in relation to terrorism and foreign criminals, some judgments on proportionality have given rise to political controversy.

(iii) Devolution

  • Another parliamentary initiative which has involved the courts in constitutional adjudication domestically has been the enactment of devolution legislation since 1998. The establishment of devolved legislatures and devolved administrative institutions has created the potential for disputes about the limits of the competence of the devolved institutions. Judicial decisions in this sphere can cause political controversy

Conclusion

  • Upholding the rules of public law is an integral part of the judicial function. Judges do develop that law incrementally in accordance with pre-existing principles and with regard to the constraints of precedent. But judges do not make political decisions. Their role, which is vital to a healthy democracy, is carried out in the context of the two fundamental principles of the British constitution: the rule of law and parliamentary sovereignty. Explaining our role to legislators, commentators and the wider public is one of the contemporary challenges which judges face.

[1] I am grateful to my judicial assistant, Tom Watret, for his assistance in preparing this address from several significantly longer lectures which I have delivered on this subject.

[2] In Re Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680, [32].

[3] Both the UK Government and devolved administrations.

[4] R (on the application of Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2019]

EWHC 221 (Admin) at [326] and R (Wilson) v The Prime Minister [2019] EWCA Civ 304 at [56].

[5] There are also common law or prerogative powers, for example in relation to foreign policy, defence, and the relations between the executive and Parliament, but the majority of day-to-day administrative powers are conferred by statute.

[6] R v Home Secretary, ex p Simms [1999] UKHL 33; [2000] 2 AC 115, 131.

[7] R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869.

 

 

Aller à la barre d’outils