The City of London lord mayor’s dinner for HM judges is a rather special kind of works outing for the judiciary. Their shop steward, the lord chief justice, traditionally uses the opportunity to tell the lord chancellor what his fellow judges think of the government’s policies.
In 1991, for example, Lord Lane complained that judicial independence was under threat from the “acute shortage” of high court judges, which he blamed on government prevarication. Twenty-two years on, his successor used the same occasion to give a similar warning.
“We must remain vigilant against the slightest encroachment on judicial independence,” Lord Judge said on Wednesday night, “because without an independent judiciary the rule of law would collapse.”
Unlike Lane, Judge is not someone who chooses to take on the government in public. Even though this was his last opportunity to address his troops as their leader, he chose not to spell out any specific concerns.
Instead, Judge said we should not take judicial independence for granted. He sounded a warning against the accumulation of “centralisation and control” by authorities of the state.
The lord chief justice insisted that judges must be meticulous in their scrutiny of the constitutional reforms implemented in 2005. “The consequences to the institutional independence of the judiciary … have not yet been settled,” he said.
Judge received a warm and lengthy standing ovation at the end of his speech. But which concerns did he have in mind?
Certainly the government’s plans to allow private investment in the courts of England and Wales, a proposal I discussed last week. Certainly his concern, expressed to MPs in January, that there was nobody in the cabinet who could tell its members how a particular policy might impact on the judiciary. Perhaps the government’s plans to allow the broadcasting of judges’ sentencing remarks in the crown court, which he opposed on the same occasion. Perhaps the reported threat by some judges to resume practising as lawyers because their pensions are to be cut by more than a third.
And perhaps it was the senior judges’ concerns, set out in their response to Chris Grayling‘s consultation paper on legal aid, about the quality of legal representation in publicly funded cases.
“We could not support a proposal which did not have a robust system for assessing quality in addition to the current requirements for compliance with regulatory standards,” the Judicial Executive Board said last month.
Grayling, speaking immediately after Judge on Wednesday night, ducked all of these issues. Earlier in the day, though, he had told MPs it was a myth to suggest that the quality of service had been ignored in his legal aid consultation. And, sure enough, he was able to show that “quality and capacity assessment” was mentioned as one of the stages in the government’s proposed procurement process.
Sitting next to the lord chancellor as he responded to members of the Commons justice committee on Wednesday morning was Dr Elizabeth Gibby, the hapless official who had been unable to answer a question about quality posed by a lawyer at the public meeting about which Ireported in May.
It was Gibby who nearly gave the game away on that occasion when she encouraged responses on whether clients should lose the right to instruct a solicitor of their choice. As I wrote at the time, she seemed open to what she summarised as a client-choice model, “so that if people win contracts, they will not be guaranteed a percentage of business in their area”.
Grayling had argued in his consultation paper that a guaranteed level of work was the only way to persuade lawyers to accept lower fees. If clients could instruct lawyers of their choice, work levels could not be guaranteed.
But we now know that the lord chancellor had decided to drop his plan to abolish client choice at an early stage in the consultation. He believed it might even have been unlawful to announce that he had changed his mind before he had read at least some of the responses.
Speaking on Wednesday night, Grayling promised the judges he would maintain the rule of law and judicial independence. “I see it as my job to defend the judiciary against unwarranted attacks. If we don’t like what you do, we should change the law and not complain about how you interpret the law as it’s given to you.”
But he promised a lively debate in the coming months about “judgments emerging internationally that seek to overturn perfectly reasonable rulings of our domestic courts and in matters that are rightly for our legislature”.
Playing safe, Grayling devoted much of his speech to praising the outgoing lord chief justice.
But he couldn’t top the tribute paid to Judge by the lord mayor, Alderman Roger Gifford. With a nod to Peter Cook, the lord mayor, a banker, said he “could have been a judge but he never ‘ad the Latin”. Despite that, Gifford proposed a toast to Judge in what he described as “the proper language of the law”.
Raising a glass, he said: “Propinamus tibi, Domine Iudex, qui in consilio, doctrina, benignitate admirabilissimus, necnon urbi Londinio benevolentissimus, semper fuisti. Ave, Domine Iudex, stupor mundi!“
No translation was offered on the night and none was needed, but readers are welcome to provide their own.