Paul Magrath, barrister and advocate of transparency in the courts
Putney Debaters tackle 'constitutional crisis' and propose judicial reforms for 21st century
The Foundation for Law, Justice and Society, in association with the Oxford Faculty of Law, last week staged the third in its series of modern-day constitutional conventions at St Marys Church, Putney, the home of the original debates of 1647.
With yet more headlines proclaiming "constitutional crisis" in the wake of Speaker John Bercow's denial of a third parliamentary debate on Brexit (precedent for which dates from 1604), The Putney Debates 2019: The Courts: Friend or Foe? addressed the constitutional implications of the EU Referendum result for our judiciary.
This year's subject was the ‘Enemies of the People’ controversy and threats to the independence of the courts posed by populist movements in the UK and further afield.
You can now catch up on the debates in full on the FLJS Video page and YouTube channel.
Watch Videos of the Debate on YouTube:
Informing the public
The 2019 Debates were chaired by Denis Galligan, Oxford Professor of Socio-Legal Studies, and the UK's leading legal commentator Joshua Rozenberg, who opened the debates on 13 March, the day after MPs had their ‘meaningful vote’ on Brexit. With the prospect of a second referendum still in play, the Debates represented an invaluable opportunity for engaged citizens to put their questions to the expert panellists, including of Court of Appeal judges, defenders of civil liberties, legal and political commentators, and constitutional experts.
Speaking of the reasons behind this year’s focus on the independence of our courts, Professor Galligan said:
Politics by other means
Justice Robert E Sharpe set out the terms of the first day of the debates with his opening statement on the changing role of the judge in the 21st Century, arguing that judicial review should not be seen as ‘politics by other means’.
Catherine Barnard, Cambridge Professor in EU Law and Senior Fellow in the ESRC’s UK in a Changing Europe project, took up Justice Sharpe's comments by exploding myths about the much-criticized European Court of Justice.
She noted that criticism of the ECJ for being too political in its judgments is not always fair, since it is often forced to make rulings that will have political implications by politicians who pass the buck instead of making policy they know to be unpopular. She went on to say that the court could communicate with the public much better – for example, by televising cases, as the UK Supreme Court now does.
Independence from whom?
Linda Mulcahy, Director of the Centre for Socio-Legal Studies, asked the audience to re-evaluate the way we frame the question of judicial independence, asking: independence from whom? She claimed that, while it is important that the judges remain independent of undue influence from the government and parliament, public perception of the judiciary is also important, and if they are seen to be entirely independent of the people at large, confidence in the system is damaged.
On Day 2 of the debates, Ezeqiuel Gonzalez Ocantos, Oxford Professor in Politics, expressed an optimistic vision that progressive judgments by international courts such as the ECJ have the power to embolden national courts to expand human rights.
Catch Up Now:
Video of Putney Debates 2019 Session 1: What Is Judicial Independence and Why Is It Important?
Video of Putney Debates 2019 Session 2: Is Judicial Independence Under Attack? If So, How — and Why?
Video of Putney Debates 2019 Session 3: How Can We Defend Judicial Independence?
"Enemies of the People"
Joshua Rozenberg followed up by referring to his interview with President of the UK Supreme Court Lady Hale, who told him that the Lord Chancellor could have done more to support the judges following the 'Enemies of the People' controversy, and that the damage may be long-term: "It has deterred good people from joining the judiciary. If you can't persuade good people to become judges, then rule of law is in peril."
In the final session of the day, Professor of Public Law Graham Gee contested this view of the Lord Chancellor's actions, since in 2005 the role of the Lord Chancellor was aligned more closely with that of other politicians, rather than as a representative of the judiciary within Parliament, and that Lord Judge was wrong to criticize Liz Truss over the Enemies of the People uproar.
Paul Magrath, a barrister and advocate of greater transparency in the courts, set out his vision that: "It is crucial that judges explain their judgments clearly to the public." He explained that, while rules apply to judges blogging on social media, many judges are on Twitter anonymously, and that this should be seen as "all part of the move from mystery to transparency". He went on to identify "The elephant in the room" as "a kind of Brexit 2 – several MPs want to withdraw from the European Convention on Human Rights (ECHR), which has contributed to the softening approach of the Strasbourg Court".
Andrea Coomber, Director of the all-party law reform and human rights organization JUSTICE, endorsed this point on the influence of European human rights judgments, saying that the ECtHR has reflected on criticism regarding its judgment on prisoners' voting rights that it might have overstepped the mark regarding politically sensitive judgments. It is now seeking to engage in more dialogue with the UK Supreme Court regarding future decisions.
The Putney Debates 2019 were attended by over 100 people, who all received a free copy of Constitution in Crisis: The New Putney Debates, the book that accompanies the debates, featuring bitesize essays by prominent public intellectuals. The Times newspaper covered the debates in its 14th March edition, describing it as offering some 'level-headed debate', in contrast to the debates in Westminster over the ongoing constitutional crisis caused by Brexit.
For those unable to attend the Putney Debates 2019 in person, both days of the debates were filmed, and videos are now available from the Related Content section below and the FLJS video channel.
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