Is English common law at risk of becoming out of date?

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English law took a "wrong turning" around 35 years ago, the lord chief justice of England and Wales said in a lecture earlier this month.

Lord Thomas of Cwmgiedd was referring to the unwillingness of the courts to review decisions reached behind closed doors by independent lawyers acting as arbitrators.

Arbitration is often the preferred means of resolving commercial disputes, not least because hearings are not open to the press or public.

Arbitrators chosen by the parties - sometimes sitting as a panel of three - hear the arguments in much the same way as a court and then deliver a ruling, known as an award.

In 2014, an arbitral tribunal ordered Russia to pay a record $50bn (£29.5bn) to former shareholders in the now defunct oil company Yukos.

Arbitration awards can be enforced in more than 150 countries around the world, although Russia is currently challenging the Yukos decision.

But the English courts will not agree to hear an appeal against an arbitrator's award unless it is open to serious doubt, meaning that few such appeals come before the courts.

This has resulted in "a serious impediment to the development of the common law", according to the lord chief justice.

He was referring to the way in which the decisions of senior judges are treated as precedents and followed by other courts.

Common law:

  • Common law is made by judges rather than by parliament
  • Lawyers study reports of decided cases and derive principles from them that will be applied by other judges in future
  • In applying old principles to new circumstances, the judges develop the common law to meet modern needs
  • For this to work, the courts need a steady stream of new cases
  • A crime is said to be an offence at common law if the judges have always treated it as a crime
  • Examples are murder, manslaughter and common assault
  • Other offences may be developed by the judges, such as misconduct in public office
  • Parliament may modify a common law offence at any time, abolish it or replace it with a statutory offence
  • Some common law offences fall into disuse and are regarded as obsolete

The chief justice's concern was that without a steady diet of cases to feed on, the common law - effectively the collective wisdom of judges past and present - would become increasingly out of date.

It would change from a living instrument into what another judge had described as an ossuary, he said.

And that would make London a less attractive place for companies to settle their disputes.

There was a time when judges tried to pretend that they did not make new law - they merely declared it.

In a lecture published in 1972, the great Scottish judge Lord Reid famously said that some people seemed to think the common law was hidden in an Aladdin's cave and judges were given the magic password on appointment.

"But," he continued witheringly, "we do not believe in fairy tales any more."

Too much law

The complaint now is that judges are making too much law or taking the law in the wrong direction.

The Supreme Court judges who overturned a veto by the attorney general and allowed publication of letters written to government ministers by the Prince of Wales, were accused last year of a "tendency towards judicial supremacism".

Image copyright EPA
Image caption Supreme Court judges allowed publication of letters written to government ministers by the Prince of Wales

In a recent paper, the think tank Civitas argued instead that judges should swear to uphold the sovereignty of parliament.

"The effect would be that judges who invent new laws without public or parliamentary approval will be in breach of their oath and liable to removal from office," said the paper's author, Dr David Green.

In reality, though, judges have been developing English common law for hundreds of years.

Murder is a crime because the judges have always regarded it as unlawful, not because parliament ever said it was.

The ability of judges to develop the law was of particular importance in Scotland, which did not have a parliament of its own for 300 years.

Lawyers who try to persuade judges to extend the law are not in quite the same position as surgeons who may hone their skills by trying out new techniques on patients.

Judges can modify the body of laws in a way that doctors cannot modify the body of a patient.

But it is true to say that a modification of the law can be abandoned in the same way as a discredited surgical technique.

We saw that in February when the Supreme Court ruled that earlier decisions on joint enterprise had been misinterpreted and changed the law.

It seems hard to believe that the commercial court is running out of work.

Stark warning

Some lawyers thought Lord Thomas was trying to attract important cases back to the courts, which in turn might persuade leading lawyers to become judges, rather than sit as arbitrators.

Image caption Lord Thomas says English law must be more willing to review decisions reached behind closed doors

The courts are finding it increasingly difficult to attract the very best recruits, not least because of the huge pay cut that a full-time judicial post now entails for successful lawyers.

But the lord chief justice offered a stark warning.

The consequence of diverting claims from courts to arbitrators, he said, "has been the undermining of the means through which much of the common law's strength - its 'excellence' - was developed, a danger not merely to those engaged in dispute resolution in London but, more importantly, to the development of the common law as the framework to underpin the international markets, trade and commerce".

When the most senior judge in England and Wales says the common law is in danger, we need to take heed.

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