Introduction
Since the enactment of the Constitutional Reform Act (CRA) 2005, a quiet revolution has unfolded within the judiciary of England and Wales.Footnote 1 The Act transferred the leadership and responsibility for much of the governance of the judiciary from the Lord Chancellor to the Lord Chief Justice, resulting in a ‘considerable growth of the institutional power of the judiciary’.Footnote 2 This has enabled judges to develop a distinctive and wide-ranging programme of activities on the international plane. This programme is described by the current Lead Judge for International Relations, Lord Justice Gross, as ‘independent of the executive but not free-lancing’.Footnote 3 It is multi-faceted, covering the judiciary's membership in international judicial associations, participation in bilateral and multilateral meetings with other judiciaries, engagement in law reform projects and the provision of support to judiciaries in developing countries, all prioritised on a strategic basis.Footnote 4
This development reflects a broader trend in ‘judicial diplomacy’Footnote 5 worldwide. Technological advancements and the interweaving of domestic and international legal orders have incentivised official, ‘off the bench’Footnote 6 meetings between different groups of judges in various forums. As a result, many senior judges have developed roles as ‘judicial statesperson[s]’Footnote 7 or ‘ambassadors’Footnote 8 with responsibility for representing their court and its jurisprudence abroad. The US Supreme Court Justice, Stephen Breyer, argues that international engagements are now ‘part of today's judicial experience’ – the judicial role has become ‘more diplomatic’.Footnote 9
The rise of judicial diplomacy in the UK has significant ramifications. Regular interaction between judges has the potential to influence judicial reasoning and institutional practices, as the participating judges learn from the insights of other courts.Footnote 10 It can also enable courts to develop prestige and influence beyond their legal systems, thereby bolstering their position domestically and internationally.Footnote 11 The emergence of judicial diplomacy has particular importance in the context of Brexit. Senior judges are adamant that their engagements with judges abroad should continue, and no less within Europe. The Justice of the UK Supreme Court, Lady Arden, who served as the lead judge in international relations for England and Wales for 12 years, argues that Brexit requires the UK's judiciaries to strengthen, not weaken, their relations with their national and supranational counterparts, a view shared by the President of the Supreme Court, Lady Hale.Footnote 12 The political importance attached to these interactions is further underlined by the agreement on the UK's withdrawal from the EU, which indicates a shared view that meetings between UK judges and judges of the Court of Justice of the European Union (CJEU) should continue to take place beyond the UK's exit.Footnote 13 However, the engagement of judges in this area is not without its critics, and Brexit has renewed questions around the appropriate limits of judicial activity.Footnote 14
The diplomatic work of senior judges in the UK is therefore an important dimension to their role in the changing constitution. In view of its salience, this paper offers an account of the aims and challenges of one prominent form of this diplomacy: bilateral meetings with supranational courts. It does so using a case study of the meetings which have taken place periodically between UK judges and the judges and officials of the European Court of Human Rights (ECtHR). For this purpose, it draws upon in-depth interviews conducted with eight Justices of the UK Supreme Court and four judges of the ECtHR over 2014–15, along with extra-judicial commentary and other documentary sources. The bilateral meetings which have been held between these judges constitute an exemplary form of this type of judicial interaction within a supranational legal system. Judges on both sides have spoken of the value of these meetings and called for them to take place on a more frequent basis.Footnote 15 Despite having a longer constitutional history, dating back to the European Communities Act 1972, Paterson suggests that there has been far less direct interaction between UK judges and judges of the CJEU.Footnote 16 UK judges have suggested that the binding nature of Luxembourg judgments has limited the scope for constructive differences of view, and that it is less apparent from the reasoning that domestic judicial concerns have been heard.Footnote 17 Nonetheless, the meetings with the two supranational courts have been underpinned by broadly the same aims.Footnote 18 Studying these aims therefore offers valuable insights into the approach of UK judges in both contexts.
The analysis here suggests that judicial diplomacy has become an important feature of the work of senior judges in the UK. It has enabled them to pursue a combination of jurisprudential and strategic aims. At the jurisprudential level, UK judges have sought to promote well-reasoned decision-making at home and at the supranational level. Strategically, their aims have been twofold. They have attempted to preserve robust inter-institutional relations with the supranational courts during politically challenging periods, and have also sought to maximise their influence over the development of the supranational jurisprudence. However, this new area of judicial work poses challenges. The meetings with the supranational judges generally occur behind closed doors under conditions of confidentiality, raising questions for the maintenance of judicial independence and impartiality in this context. The judiciaries should therefore consider taking steps to improve the visibility of these encounters and their aims.
The paper consists of five parts. Part 1 sets out the theoretical and methodological framework for the research. Part 2 provides an account of UK-Strasbourg judicial relations, covering the historical emergence of the meetings, their frequency, the participants and the format of the discussions. In Part 3, the aims which have been attributed to the meetings by the judges are explored. These aims and their challenges in the wake of Brexit are then examined in Part 4. Finally, there are some concluding remarks on the future direction of the UK judges’ bilateral engagements with supranational judges.
1. Theoretical and methodological framework
(a) Judicial diplomacy: incentives and limits
Judicial diplomacy occurs through a range of forums: bilateral and multilateral meetings, seminars, conferences, and official networks and associations.Footnote 19 However, participation in these engagements is to some extent determined by the characteristics of the court or judge in question. Generally, such activities tend to be centred on the common adjudicative responsibilities and expertise of the participants, for example in the fields of constitutional law, human rights or commercial law, or their common membership within international legal regimes. The seniority of individual judges and the position of their court within their respective legal systems are also important, with appellate courts and more senior judges tending to participate most frequently.Footnote 20 Personalities are also a factor, since enthusiasm among judges for international engagements varies considerably. Some judges believe firmly in the value of these interactions, while others prefer ‘to get on with the business of judging’.Footnote 21 There are ‘insular’ judges and there are ‘extreme networkers’.Footnote 22 UK judges are no exception in this regard.Footnote 23 Shared legal traditions and pre-existing relationships between judges are also relevant to the level of diplomatic activity between courts.Footnote 24
Beyond these characteristics, commentators have pointed to a range of ‘incentives’Footnote 25 to participation in judicial diplomacy. These incentives can be categorised along jurisprudential and strategic lines. The jurisprudential incentives relate to the decision-making of the courts and their development of legal principles.Footnote 26 The strategic incentives, by contrast, concern the institutional interests of their courts, in particular their authority, legitimacy and influence with their different audiences.Footnote 27
At the jurisprudential level, meetings between judges may help to improve the quality of legal reasoning, in a variety of ways. They offer an occasion to discuss and clarify case law, and exchange views in areas of common concern and interest.Footnote 28 Tyrrell argues that they have particular relevance for national judges working within supranational legal orders, providing opportunities to obtain guidance on the jurisprudence of the supranational courts.Footnote 29 More broadly, these encounters offer the judicial participants the potential for mutual enlightenment and influence as they exchange views and promote ideas from their respective legal systems.Footnote 30 Indeed, Claes and de Visser suggest that face-to-face meetings between judges can even facilitate ‘a more political dialogue’ in which judges advocate particular approaches to legal issues.Footnote 31
In strategic terms, the various forms of judicial diplomacy constitute a form of ‘outreach work’Footnote 32 which can help courts to enhance their standing among different judicial audiences. Such standing is important, and not only because judges generally value the esteem of their peers.Footnote 33 Mak argues that judicial authority in a globalised context is shaped in part by the prestige which different courts attribute to one another.Footnote 34 On that basis, judicial diplomacy can offer a number of potential advantages. It enables judges to demonstrate their intellectual quality on the international stage.Footnote 35 Further, Slaughter suggests that it allows courts to promote knowledge and understanding of their case law, which in turn can encourage the citation of their decisions by other courts outside of their jurisdictions. Direct interactions, she suggests, can also help to shore up institutional relations, building mutual respect between courts and providing an important buffer to the underlying relationship in the event of future conflicts.Footnote 36 Building their authority internationally in these ways may in turn allow courts to strengthen their domestic position vis-à-vis the other branches of government.Footnote 37 Law thus contends that judicial diplomacy goes well beyond ‘collective learning or intellectual debate’ – it is also ‘an exercise in power politics’.Footnote 38
In view of these incentives, the involvement of judges in this sphere has prompted questions regarding the constitutional limits of the judicial role. Some have argued that meetings between judges from different courts and jurisdictions have the potential to undermine judicial impartiality and independence. These are closely related concepts, but they refer to distinctive, internal and external features of the judicial institution. According to O'Brien, impartiality concerns the judicial mind-set: the need for judges to have a ‘personal psychological commitment’ to deciding cases on the basis of the facts and law alone. Judicial independence, on the other hand, relates to the ‘rules, conventions and cultural practices’ erected to preserve that mind-set, thereby allowing judges to decide cases free from undue pressure or influence. These rules and practices also serve to symbolise judicial impartiality, which is ‘otherwise almost intangible’.Footnote 39
The traditional understanding of the judicial role is that judges should speak only through their formal pronouncements on the law. By this standard, participation in meetings with judges from other jurisdictions has the potential to compromise independence and impartiality.Footnote 40 This view has been forcefully articulated by Young, who argues that ‘[i]n no account of the British Constitution … does the role of the judge include acting as a branch of Foreign and Commonwealth Office’.Footnote 41 In his view, the involvement of judges in international engagements – what he terms a form of ‘judicial executivism’ – risks encouraging judges to step beyond their constitutional role and undermines their duty to decide cases ‘on the basis of the evidence and arguments presented “after the laws and usages of this realm”’, as per their judicial oath.Footnote 42 For national judges actively engaged in judicial diplomacy, de Visser and Claes suggest there is further risk of being perceived as prioritising international over domestic legal concerns.Footnote 43
These concerns have particular salience in the context of Brexit, which has prompted renewed discussion regarding the appropriate limits of the judicial role. The judicial rulings that an Act of Parliament was required before the UK government could initiate the UK's withdrawal from the EU prompted fierce attacks on the judges’ impartiality from sections of the press.Footnote 44 Some academic commentators have also expressed hope that Brexit will inspire judges to adopt a narrower understanding of their constitutional role. Ekins and Gee argue that a cumulative erosion of the limits of the judicial role over recent decades has left it ‘overinflated’, with judges having taken on responsibilities ‘not fitting for their office’.Footnote 45 They therefore call for a return to a more limited judicial role confined to the impartial resolution of disputes based on the existing law.Footnote 46
In summary, the scholarship points to a range of reasons as to why judges might engage in diplomacy with other courts, but the pursuit of these incentives poses acute questions for the nature of the judicial role and its limits in the contemporary constitution, particularly in the wake of Brexit. It is therefore important to understand how UK judges have approached this dimension of their work.
(b) Methodology: in-depth interviewing and documentary analysis
Studying judicial diplomacy presents a number of methodological challenges. The content of discussions between different groups of judges is rarely published. Moreover, judicial decisions provide little, if any, insight into this topic, while the official reporting by the judiciaries in the UK on their international engagements lacks comprehensiveness and detail. This paper therefore adopts a methodology centred on the direct, extra-judicial accounts of judges with first-hand experience of these meetings. It relies on data obtained from in-depth interviews conducted with eight Justices of the UK Supreme Court and four judges of the ECtHR, respectively carried out in July 2014 and May 2015.Footnote 47 It also draws from the lectures, statements and other extra-judicial work of senior UK judges which address this topic. Particular attention is given to the writings of Lady Arden. From 2004 to 2017, Lady Arden acted as the lead judge for international relations for the judiciary of England and Wales, and in October 2018 she was appointed as Justice of the Supreme Court. Her views therefore have particular relevance in this area.
The principal advantage to this approach is that extra-judicial comments can reveal judicial motivations which are not apparent from court judgments.Footnote 48 However, the usual limitations of reliance on judicial self-reporting, such as the potential for a lack of total candidness on the part of the interviewees, or the possibility of strategic responses, cannot be discounted entirely and are therefore an important caveat to the findings.Footnote 49
2. UK-Strasbourg bilateral relations 2006–17
(a) The diplomatic capacity of the UK's judiciaries
The emergence of bilateral meetings between UK and ECtHR judges has been facilitated by major constitutional reforms over the last two decades which have given the UK's judiciaries the capacity to conduct relations with courts abroad. The Human Rights Act (HRA) 1998 provided a powerful incentive for bilateral relations with the judges in Strasbourg. It empowered the UK courts to adjudicate on rights under the European Convention on Human Rights (ECHR) and instructed them to ‘take into account’Footnote 50 the judgments of the ECtHR in performing this task, thereby furnishing the courts with common purpose. While the Act left open whether UK judges should conduct any relations with the ECtHR judges, the new domestic legal status of the Convention rights and the judgments of the Strasbourg court undoubtedly provided the principal motivation for future bilateral discussions.
In constitutional terms, however, the HRA 1998 did not alter the judiciary's lack of autonomy in this field. This is underlined by the fact that the first bilateral meeting between UK and ECtHR judges did not take place until 2006, more than five years after the HRA 1998 entered into force.Footnote 51 As Lady Arden explains, until 2005, the international engagements of judges in England and Wales were the responsibility of the Lord Chancellor's department. The judges themselves had ‘no control’Footnote 52 over these activities.
The CRA 2005 radically altered this arrangement. It transferred the leadership of the judiciary of England and Wales from the Lord Chancellor to the Lord Chief Justice and with it numerous powers over its governance.Footnote 53 This included the responsibility and a small budget for international judicial relations, prompting a number of initiatives. The judiciary established a set of objectives for its international work, which included building links with judiciaries across Europe, and a new post of lead judge for international judicial relations was created.Footnote 54 The first judge appointed to this position was Lady Justice Arden (as she was then), as she recounts:
As a separate institution, the judiciary had to conduct its own foreign policy and I became, so to speak, its foreign secretary. My responsibility was, where appropriate, to facilitate relations with other judiciaries and to receive visits from them in London.Footnote 55
In this capacity, Lady Justice Arden organised the first meeting between UK and ECtHR judges in 2006.Footnote 56
Since that first meeting, ongoing institutional reforms brought about by the 2005 Act have further enhanced the ability of UK judges to develop their relations with courts abroad. The judicial appellate committee of the House of Lords was replaced with the Supreme Court.Footnote 57 With considerably greater administrative and financial independence than its predecessor, the Court made the development of relations with the European courts one of its strategic objectives.Footnote 58 The 2005 Act also led to the establishment of the Judicial Office to provide support to the judges of England and Wales with their new responsibilities.Footnote 59 This further enhanced the judiciary's diplomatic capacity, with an international team providing logistical support for both incoming and outgoing judicial visits.Footnote 60
For the judiciaries in Scotland and Northern Ireland, operating in distinct legal jurisdictions under separate structures of judicial governance, the 2005 Act had limited constitutional significance.Footnote 61 However, as a result of the reforms described above, the judiciary of England and Wales has adopted an important coordinating role in judicial diplomacy, liaising with the judges in Northern Ireland, Scotland and at the Supreme Court in the organisation of UK-wide bilateral engagements with the supranational courts.Footnote 62 To this extent, the 2005 Act has been important for the international work of judges across the UK, albeit indirectly for those in the Scottish and Northern Irish jurisdictions.
(b) A timeline of UK-Strasbourg judicial relations
Since 2006, bilateral meetings between UK and ECtHR judges have continued to take place. From the available details, eight meetings were held from 2006–2017.
As Table 1 shows, the meetings have generally taken place every 1–2 years. Their continuation since 2006 has been underpinned by a shared belief among the participants that the value of the encounters depends on their frequency.Footnote 64 Personalities have also been significant. Lady Arden has long emphasised the importance of relations with the European supranational courts, and has been described by the former ECtHR President, Dean Spielmann, as the ‘moving force behind the strong relations that exist’Footnote 65 between UK and Strasbourg judges. Spielmann has also been an important personality, having been a major advocate of bilateral exchanges between the domestic judiciaries of states who are parties to the ECHR and the ECtHR.Footnote 66 It is noteworthy that there were more bilateral meetings between the UK and Strasbourg judges during his presidency from 2012 to 2015 than under any other ECtHR President. Nonetheless, limited resources on both sides, as well as the demands of adjudication, have prevented these meetings from taking place more regularly.Footnote 67 Despite the increased capacity of the judiciaries for international work, Lady Arden suggests that individual judges are often required to spend their annual leave in order to participate.Footnote 68
Bilateral exchanges between UK and ECtHR judgesFootnote 63
(c) Setting the scene: the participants, format and tone of the meetings
Exchanges between the UK and Strasbourg judges usually involve 15–25 participants, as Figure 1 indicates. This usually comprises a ‘pick-and-mix’ of participants from each side. From the UK, the meetings have tended to include the Lord Chief Justice of England and Wales, the lead judge for international relations, the President and/or Justices of the UK Supreme Court, and senior judges from the Court of Appeal, the High Court and the Scottish and Northern Irish jurisdictions. In this respect, the meetings are consistent with broader trends in judicial diplomacy, where senior judges from domestic legal systems have tended to be the most common participants.Footnote 69 From Strasbourg, the meetings have usually included the Court's President, the UK judge at the Court, senior members of the Registry and, other judges.
In terms of format, the exchanges generally take place over the period of one to two days, consisting of what are variably described as ‘roundtable discussions’ or ‘working sessions’.Footnote 70 UK delegations to Strasbourg tend to participate in one meeting together, whereas Strasbourg delegations to the UK have often attended separate meetings with the Lord Chief Justice and the Supreme Court. The meetings typically have a written agenda, which is agreed by the judges in advance.Footnote 71 Crucially, no minutes are recorded or published. During the meetings, the judges are free to articulate their questions, concerns and ideas. As one interviewed Justice described it, there is ‘give and take and open discussion’.Footnote 72
The judges consider this format to enable them to express themselves with greater nuance and without the reservation required when delivering judgments or public lectures. As one interviewed Strasbourg judge recounted, ‘there is no press in attendance, the meeting is behind closed doors, the atmosphere is friendly, but the exchange of views is frank – so the participants do not pull their punches’.Footnote 73 They are therefore seen an important complement to the courts’ respective judgments, which Lady Arden suggests are ‘not always … the best way to make a point’.Footnote 74
3. The aims of UK judges in bilateral exchanges
The findings from the analysis of the interviews and others documentary sources are consistent with much of what has been proposed in the scholarship. As a preliminary point, not all of the judges interviewed shared an enthusiasm for this area of work. Just as others have found, while some of the Justices (all but one, in this instance) saw value in these engagements, others were less convinced of the need for them.Footnote 75
For the UK judges who see advantages in meeting with their supranational counterparts, there are three overarching aims: improving the quality of decision-making; maintaining good inter-institutional relations; and maximising influence at the supranational level. The first of these is jurisprudential, relating to the legal reasoning of the courts. The others are strategic, concerning their wider, institutional interests.
(a) The jurisprudential aim: improving the quality of decision-making
UK judges have engaged in bilateral meetings with the judges of the Strasbourg Court in order to enhance their understanding (and that of the Strasbourg judges) of considerations which are relevant to their decision-making. The encounters offer the judges the opportunity to receive guidance on the application of ECHR principles from the supranational judges, but also to contribute their views to the development of those principles. This reflects what Lady Arden suggests are the ‘principal purposes’ of international judicial diplomacy: to ‘learn from judges overseas and, where appropriate, to influence their thinking’. The promise of this two-way process, she suggests, is a higher quality of domestic and supranational jurisprudence.Footnote 76
(i) Guidance on case law
Bilateral meetings provide an occasion for the judges to discuss recent developments in their respective case law. The UK judges can explain how they have, in one Strasbourg judge's words, ‘tried to translate the implications [of ECtHR judgments] into domestic law through their judicial activity’,Footnote 77 and the ECtHR judges are able to provide feedback on that activity. According to the Justices interviewed, this feedback tends to be very positive, with the Strasbourg judges having repeatedly expressed their appreciation for the detail and rigour with which UK judges have applied the ECtHR case law. This was clearly the source of some pride for the Justices:
[T]he judges of the Strasbourg court regularly say that they find the jurisprudence of the British courts to be very useful in their examination of Convention rights, even when they're not considering British cases.Footnote 78
Additionally, the meetings were said to allow the judges to share their views on the application of common legal principles, such as proportionality and the margin of appreciation. Consistently with other research in this area, some of the Justices interviewed claimed to find these discussions useful but were unable to link previous discussions to direct changes in reasoning.Footnote 79 As one Justice explained,
It's difficult to say that there is any obvious, clearly identifiable practical consequence but at the same time it's been very important for us and, I hope, for them, … to have different perceptions of how one should deal with particular points articulated. I think it's very helpful.Footnote 80
An area where the meetings were considered to be particularly valuable, however, is in the discussion of problems which have arisen in practice. A notable example given by the Justices concerned the domestic application of Strasbourg case law. For the first decade of the HRA 1998, UK judges wrestled with the question of how to apply the decisions of a court that did not adhere to the same system of judicial precedent, nor explicate its reasoning ‘in the discursive analytical style of the common law tradition’.Footnote 81 One Justice suggested that the tendency of UK judges was ‘to try and reconcile every single Strasbourg authority’,Footnote 82 often with great difficulty. For several of the Justices interviewed, this issue had been vividly demonstrated in the case of Sturnham,Footnote 83 a case concerning the award of damages for violations of the right to a speedy review of a detention under the ECHR, Article 5(4). The judgment gives voice to the frustration among the Justices with the ‘time-consuming process’Footnote 84 required to survey over 70 Strasbourg decisions which had been presented to the Court.
In light of these difficulties, meetings between the judges were considered a valuable aid. According to one Justice, ECtHR judges can ‘… give us a bit of assistance as to how they think we should be approaching it’.Footnote 85 The particular guidance issued by the Strasbourg judges on this issue was for the UK courts to focus primarily on the Grand Chamber decisions:
One got the impression that, as far as Strasbourg is concerned, a single Chamber decision does not reflect a clear and constant Strasbourg line, and it's only when you get to the Grand Chamber that you can say that Strasbourg has taken a particular, strong position, and that we possibly shouldn't worry as much as we do about the Chamber decisions.Footnote 86
Some Justices questioned the feasibility of this approach, given that there are comparatively fewer Grand Chamber judgments. Nonetheless, having the benefit of these suggestions was valued by several of the Justices in helping to inform and develop their approach to Strasbourg cases.
(ii) Influencing the supranational jurisprudence
Equally, the judges value the meetings as an opportunity to contribute to the development of judicial thinking at the supranational level. In particular, the meetings offer an occasion to enhance knowledge and understanding of domestic law and practice in Strasbourg. Several of the Justices interviewed shared a view that the ECHR system is dominated by states with civil law legal traditions, from which the ECtHR also draws most of its judges. It was therefore felt that the approach of the ECtHR to the development of its jurisprudence is shaped predominantly by those traditions. This was felt to give rise to occasional misunderstandings of the common law system in the UK – a criticism which has been articulated in a number of judgments since the enactment of the HRA 1998.Footnote 87
In that context, the meetings were said to provide an opportunity for UK judges to explain features of domestic law and procedure. As one Justice explained, they are able to set out ‘the mental processes of the common law’ and thereby ‘clear away misunderstandings’.Footnote 88 This was viewed as a useful means of minimising the potential for misunderstandings to arise in the ECtHR's judgments. Additionally, the judges are able to make suggestions as to how the supranational jurisprudence can be integrated at the domestic level with minimal disruption to the domestic legal order. As Lady Arden puts it, ‘a quiet conversation between judges can head off steps which might prove ill-advised’.Footnote 89 Several of the ECtHR judges interviewed agreed that the meetings are valuable in this respect. One judge suggested that it is
… the role of the British judges at these meetings … to explain to the others why it is that most legal systems in Europe, when regulating some issue in law, do it in one way, whereas the common law does it in some wholly peculiar other way.Footnote 90
Another Strasbourg judge observed that the result of such discussions is that ‘we better understand the consequences of the [ECtHR's] judgments and what we should take into account’.Footnote 91
Additionally, UK judges use the meetings to communicate their concerns directly where they feel the supranational jurisprudence is in tension with the constitutional identity of the domestic legal system.Footnote 92 The UK courts operate within a domestic common law system (with the exception of Scotland) and a constitutional tradition centred on the doctrine of parliamentary sovereignty. The ECtHR, on the other hand, is a supranational court with a jurisprudence developed from a wide range of legal and constitutional traditions and political circumstances. According to Lord Kerr, this difference reflects ‘the most potent source of tension’Footnote 93 between the two sides, since the disparate influences on ECtHR judgments inevitably create challenges for their domestic application.
In that context, the judges regard it as their responsibility to protect the domestic legal and constitutional order at the supranational level. To this end, the meetings are viewed as an important check on the power of the supranational courts, which helps to ensure accountability to domestic judicial concerns.Footnote 94 For some of the Justices interviewed, this was particularly important given the status of the common law as a minority legal tradition in Europe. On the international stage, they regard themselves as ambassadors and defenders of this tradition. Thus, the former President of the Supreme Court, Lord Neuberger, suggests that the meetings have given UK judges the opportunity to indicate ‘… where we are concerned that the common-law voice or concerns in this country are not being taken in the way that we think they should be taken’.Footnote 95 Additionally, the judges have used the meetings to raise concerns over the ECtHR's approach to subsidiarity, the principle that the national authorities are the primary guarantors of the ECHR rights.Footnote 96 Several judges have previously suggested that the ECtHR had undermined this principle by contradicting the fact-finding of domestic courts and narrowing the margin of appreciation by which it defers to the decision-making of national authorities.Footnote 97 The meetings were therefore said to have provided national judges with a forum in which to voice these concerns directly, and one Justice expressed the view that the ECtHR had clearly responded to those concerns with its development of the subsidiarity principle in its case law.Footnote 98
UK judges are therefore using their bilateral engagements not only to improve understanding at the level of decision-making but also as a means of advancing domestic constitutional interests in the development of supranational law. Moreover, there was a clear sense among several of the Justices interviewed that the ECtHR has been actively taking their views into consideration. Taken together, these insights may help to explain the growth in confidence which the UK judges have displayed in their approach to the ECtHR case law in recent years.Footnote 99 Bates notes that the judges have entered a ‘new phase’, in which they have become ‘… become more circumspect about the ECtHR, and far more willing to question its case law in the context of the domestic protection of human rights’.Footnote 100 There has also been a renewed emphasis on the common law as a source of rights protection in the case law of the UK courts.Footnote 101 Clearly, bilateral meetings have not been the only factor in these developments. As Fenwick and Masterman observe, anti-European political narratives appear to have played a significant role in encouraging UK judges to ‘emphasise the existing, and distinctly national, capacity of the courts to uphold individual rights’.Footnote 102 However, it is notable that Lady Arden considers the informal exchanges between the courts to have been ‘instrumental’Footnote 103 in developing the confidence of senior UK judges. Individual meetings may have not led to immediate changes in reasoning, but by giving the judges an additional forum in which to engage with the views of the supranational judges, voice concerns and participate in the development of the supranational jurisprudence, they may have engendered a more subtle influence in domestic judicial decision-making over time.
(b) Strategic aims
The considerations discussed so far have related primarily to the quality of the courts’ decision-making. In short, UK judges have engaged with their Strasbourg counterparts outside of court in order to enhance their appreciation of what they do respectively inside court. However, the interviews and extra-judicial insights indicate that this is not the whole picture: UK judges also pursue strategic aims through these engagements in order to maintain and strengthen their position in the supranational sphere.
(i) Maintaining good inter-institutional relations
One such aim is the maintenance of robust inter-institutional relations between the courts. Over the years, such relations have been threatened by a range of legal and political developments. The courts have often disagreed in their interpretation of the Convention rights, and several senior UK judges have publicly aired concerns about the interpretive methods adopted by the ECtHR,Footnote 104 and, occasionally, even the quality of its judges.Footnote 105 The UK Conservative Party has frequently championed a replacement of the HRA 1998 which would weaken the protection for particular Convention rights, and has repeatedly pledged to withdraw the UK from the ECHR.Footnote 106 In 2011, anti-Strasbourg sentiment reached such a severe level that the President of the ECtHR used a public lecture to express the ‘dismay and resentment’ felt among the Court's judges at the ‘vitriolic … xenophobic fury’ from politicians and sections of the media.Footnote 107
In the face of these legal and political currents, frank, face-to-face discussions between the judges were felt to perform a valuable, psychological role. One Justice explained how they allow inter-institutional prejudices and assumptions to be challenged:
Particularly at a time when one group of judges may have perceptions about the sort of people deciding cases, and the way in which they decide them, which may be entirely inaccurate, meetings which just improve one judge's understanding of what makes another judge tick are, I think, perfectly innocuous.Footnote 108
Similarly, another Justice suggested that the meetings help to reinforce a sense of cooperation and common purpose among the judges. This was considered a valuable way of managing the inevitable, constitutional tensions which arise between national and supranational courts.
More specifically, the meetings were said to allow the judges to distance themselves from the political context. One Justice observed that the UK might suffer from a view that it is ‘antagonistic’ as a country due to the ‘political stance’ toward the Strasbourg Court.Footnote 109 Moreover, there was clear awareness among the Justices that the ‘dismay and resentment’ felt by judges at the ECtHR had the potential to spill over into similar feelings toward UK judges, damaging their relations. It was therefore considered that ‘… developing relations with the Strasbourg Court and actually meeting them and seeing the judges is very, very important’.Footnote 110 It was said to allow UK judges to emphasise that the purpose of the criticisms expressed in their judgments is not to politically undermine the ECtHR but to strengthen the quality of the supranational jurisprudence.
In these ways, judicial diplomacy between the UK and the ECtHR is consistent with what has been suggested in the scholarship. UK judges use these meetings to renew inter-institutional trust and goodwill and thereby reinforce the underlying relationship.Footnote 111 The importance which some of the judges place on the need to distance themselves from the political context also underlines the autonomy with which the judges now view their relations with courts abroad since the changes ushered in by the 2005 Act.
(ii) Maximising influence
Maintaining good relations between the courts is connected to a further strategic aim: maximising influence. It was discussed earlier how the UK judges regard themselves as integral to the protection of the domestic constitution and the common law tradition. In this vein, one Justice suggested that it is incumbent upon them to ensure that the supranational courts are ‘listening to us, taking into account our concerns and interests’.Footnote 112
There was a shared view among some of the Justices interviewed that maintaining good relations with the Strasbourg judges can help to bolster their influence in this regard. One Justice argued that ‘if they see that we are basically friendly … hopefully they'll listen more to us’.Footnote 113 There have been clear indications from ECtHR judges that meetings are indeed conducive to greater receptivity to domestic judicial concerns. The former ECtHR judge, Paul Mahoney, has written that ‘[a]s far as the United Kingdom judiciary is concerned, it is knocking on an open door to suggest that the more regular the informal meetings between Strasbourg judges and senior national judges, the more productive actual judicial cooperation through judgments delivered is likely to be’.Footnote 114
Good relations with other European domestic judiciaries are also considered to be strategically valuable for bolstering influence. For example, the Supreme Court holds regular exchanges with the French Conseil d’État and the German Constitutional Court.Footnote 115 One Justice explained that these allow the domestic judiciaries to identify shared interests and concerns, which can then be communicated at the supranational level: ‘If they're getting the same message from the German supreme court and the supreme court here, I think that helps. It isn't ganging up exactly, I would call it coordinating’.Footnote 116
UK judges are therefore using bilateral engagements not only to improve the quality of decision-making at home and at the supranational level. The insights here suggest that they use these encounters as strategic opportunities to reinforce their relationships with the supranational courts and maximise their influence. Moreover, it is clear that the judges can be tactically-minded in how they seek to exercise influence. Law's observation that judicial diplomacy is as much about ‘power politics’ as ‘intellectual debate’ therefore seems to have resonance in this context, even if the power politics here play out discreetly via discussions on the application of legal principles.Footnote 117
Seeking to exercise influence in this way has arguably become more important in recent years in view of the fact that UK judges currently sit outside of two additional channels of influence which have been introduced into the ECHR system. The UK Government has shown no appetite for ratifying Protocol 16 ECHR, which enables national courts to request advisory judgments from the ECtHR on the interpretation of Convention rights.Footnote 118 Additionally, while several have expressed an interest in joining, none of the UK courts are currently members of the Superior Courts Network, the ECtHR's new online platform for case law, research and other information exchange with the national judiciaries of states who are parties to the ECHR.Footnote 119 Thus, their direct meetings will continue to be an important means of engaging with the judges of the ECtHR.
4. Judicial diplomacy and constitutional propriety
(a) Relations with the CJEU in the Brexit era
Judicial diplomacy and its constitutional propriety take on new significance in the wake of Brexit. Senior judges in the UK have insisted that they will continue to meet with judges of the Luxembourg court for as long as EU law remains relevant to their decision-making.Footnote 120 Since the European Union (Withdrawal) Act (EUWA) 2018 will retain a substantial body of EU law at the domestic level as it appears at the time of the UK's official exit, this may be for some years to come.Footnote 121 Moreover, while the Withdrawal Agreement between the UK and the EU remains unratified at the time of writing, it is worth noting that Article 163 of the agreement envisions a continuing relationship between UK and Luxembourg judges based on ‘regular dialogue and information exchange’.Footnote 122
In the short to medium term, the evidence suggests that the judges will continue to pursue similar aims in their diplomacy with the CJEU. For example, the judges have drawn attention to the continuing need for bilateral meetings over the coming years to ensure well-informed decision-making at home and in Luxembourg. Lord Neuberger argues that this follows logically from the structure of the EUWA:
If we have issues of EU law that will now become UK law, they will make decisions on legislation in the European Court of Justice for EU purposes, and we will make decisions in our courts on identically worded legislation in the UK. It seems sensible to maintain contact with them to discuss matters of mutual interest for the benefit of the people of this country and the people of the EU.Footnote 123
In this respect, it is notable that the continuing dialogue and information exchange envisioned in the Withdrawal Agreement is also aimed explicitly at promoting consistent judicial interpretation of its provisions. Moreover, UK judges have emphasised the strategic importance of maintaining ‘friendly relations’ with the judges in Luxembourg for as long as EU law and CJEU decisions remain relevant to their work.Footnote 124 It seems likely that the judges will use their ongoing exchanges to contribute to the development of the supranational jurisprudence in those areas where it remains relevant to the UK after Brexit, so as to maintain workability with domestic constitutional and legal arrangements wherever possible. It is also clear that the judges now view their international engagements more generally as a means of clarifying the UK's legal situation to global audiences.Footnote 125
Thus, if realised, the UK's departure from the EU appears set to give renewed significance to judicial diplomacy between the UK and Luxembourg. However, the highly politicised context of the process also increases the salience of concerns around judicial independence and impartiality arising from this work. Those concerns therefore merit careful consideration.
(b) A threat to judicial independence?
The Guide to Judicial Conduct for judges in England and Wales states that ‘… judicial independence extends well beyond the traditional separation of powers and requires that a judge be, and be seen to be, independent of all sources of power or influence’.Footnote 126 Of course, judicial independence does not require the ‘complete absence of any dependence on others’.Footnote 127 Indeed, under the HRA 1998 and European Communities Act 1972, UK judges have been dependent on the judgments of the supranational courts for their interpretation of the treaties. The question is whether existing practices in judicial diplomacy are sufficient to ensure judicial independence, and the perception of judicial independence.
When meeting with judges from other courts, UK judges remain subject to their duty of independence. In the context of these meetings, however, which generally take place under conditions of confidentiality, fulfilment of that duty relies on self-policing by the judges. According to one Justice, the participating judges therefore require ‘an intuitive sense of what are the proper boundaries’.Footnote 128 Their approach to the meetings should be the same as in any other context:
I don't think there's anything wrong with having informal meetings … provided that in discussions of that kind you say nothing that you might feel embarrassed to be recorded as having been said by you if some outside party were sitting in a room listening to the conversation.Footnote 129
In self-policing their independence, it seems that the judges distinguish between raising concerns with supranational judges – for example, over the clarity or coherence of the jurisprudence – and openly advocating a particular, substantive change in the existing jurisprudence. The former is considered a legitimate concern for judges to express, whereas the latter represents an unacceptable foray into political territory. A similar distinction has been expressed by the former Lord Chief Justice, Lord Thomas, on the matter of judicial meetings with government ministers and parliamentarians. He argues that while policy is the preserve of the elected branches, judges can legitimately provide ‘technical advice’ as it relates to the administration of justice, drawing from their ‘wealth of experience regarding both the operation of substantive and procedural law’:
It can properly encompass the practical consequences of proposals. It can outline how they would interact with existing procedure. Such interaction may produce otherwise unforeseen consequences in seemingly unrelated areas.… The aim is not to pass judgement on the merit of the proposal. It is to ensure that if it goes ahead it will work as well as it possibly can.Footnote 130
For several of the Justices interviewed, there is a bright line distinction between such advice and any attempt to press for substantive change in policy at the supranational level. One Justice stated this plainly:
If judges of one court were to set about lobbying behind closed doors to persuade the other court to take a different view that would be quite obviously inappropriate, and I've no awareness that any such a thing has ever happened and I don't believe that it would.Footnote 131
Nevertheless, it is important to consider whether self-policing alone is sufficient to ensure judicial independence and the perception of judicial independence. The principal challenge is that the content of the discussions between the judges is not publically disclosed. As a matter of perception, this secrecy has the potential to create the impression of ‘glamorous and vaguely conspiratorial’ activities ‘behind closed doors’.Footnote 132 More importantly, it makes it difficult to know just how far the judges seek to advocate particular views or concerns, and whether these efforts cross boundaries.
The notion of domestic judges seeking to influence the direction of jurisprudence at the international level is not generally regarded as controversial. On the contrary, it is viewed by many judges as necessary for the cohesiveness and longevity of supranational legal regimes. ‘Dialogue’ at the level of judicial decision-making, for example, has effectively involved the UK courts advocating through their judgments a set of arguments engineered to convince the ECtHR to reconsider its position on an issue; ideally, to have ‘a change of heart’.Footnote 133 In several instances, the UK courts have enjoyed high-profile success with these efforts.Footnote 134 What is more, UK judges have, on multiple occasions, aired substantive criticism of the jurisprudence of the ECtHR in public lectures. Some commentators suggest that judges have ventured into political territory through such extra-judicial pronouncements.Footnote 135
However, unlike the discussions through meetings, these interactions are a matter of public record. The criticisms and compromises signalled through lectures and judgments are there for all to see, and the constitutional propriety of these actions can be examined and debated. It may be that the judges have always stayed well within the boundaries of judicial independence during these encounters. Indeed, in recent years, UK judges have shown themselves adept at self-policing in their official, extra-judicial activities.Footnote 136 As in other contexts, however, the meetings may nonetheless give rise to concern for judicial independence ‘simply because such talks are held in secret and no one outside knows what was said’.Footnote 137 Even if the judges adhere strictly to their duty of impartiality, the risk is that the perception of their independence could be harmed. This risk is particularly acute in the context of Brexit, where senior UK judges have been accused by sections of the press of having ideological predilections to European legal institutions.Footnote 138
(c) Striking a balance between independence and accountability
Whatever the actual or perceived threat to judicial independence, there are risks in attempting to pry open the closed doors. An obvious change to current practice would be to have every meeting recorded, transcribed and published, but this would be a fraught step. Some judges appear to regard the current discretion afforded to meetings between courts as part of the confidentiality which applies to the deliberations which precede a judicial decision.Footnote 139 In that light, there may be a risk that opening the door of public scrutiny to these meetings could create an expectation that all manner of judicial deliberations should be made publically available. Indeed, one Justice interviewed suggested that it could lead to a loss of the frankness which the judges deem critical to the success of the exchanges. Moreover, publishing the details of every meeting would also present practical challenges.
As with other measures of judicial accountability, there is also the risk that such a step could actually undermine, rather than strengthen, the perception of judicial independence. The information released about the meetings could be misinterpreted, while the implicit expectation which it would place on the judges to explain and justify the meetings ‘might encourage suspicion that they have committed some wrong’.Footnote 140 The tension which confidential meetings between UK and other judges pose for their perceived impartiality therefore needs to be weighed carefully against the countervailing risks of greater openness.
One option to strike an appropriate balance is the use of softer accountability measures, such as additional judicial reporting.Footnote 141 Either through press releases or annual reports, individually or in combination, information about key bilateral exchanges with other judiciaries could be published by the judiciary of England and Wales, the Supreme Court, and other participating judiciaries, where feasible. This could include the topics, key points of discussion and agreed points of consensus or action points, without attributions to individual participants. This would not be a radical step, since information about these meetings is already shared on an ad hoc basis through judicial speeches, appearances before parliamentary select committees and extra-judicial writings. Moreover, the templates for additional reporting are already in place. The reports of the UK Supreme Court and the Lord Chief Justice of England and Wales already contain sections on the international work of the judges, albeit with limited detail. The courts have also released occasional press releases for meetings with visiting courts, detailing the participants and areas for discussion.Footnote 142 Openness in this area of judicial work could therefore be enhanced, and judicial independence strengthened, by rendering existing practices more consistent and more comprehensive.
Providing further clarity as to the purpose and content of the discussions could provide assurance that the judges are not stepping beyond their constitutional roles. Moreover, the improved accountability could encourage the judges involved in this work ‘… to reflect on their performance, to obtain feedback from stakeholders and to ensure that they are focused on achieving desirable societal outcomes’.Footnote 143 It could also promote wider understanding and support for this aspect of judicial work, and reflect its growing significance for senior judges in the UK. These changes would also be in step with the growing expectation that all those who exercise public power, including judges, should be accountable in some way for how that power is exercised.Footnote 144
Conclusion
A significant consequence of the Constitutional Reform Act 2005 has been the rise of judicial diplomacy in the UK. Bilateral meetings between UK and European supranational judges are a key part of this new activity. The domestic judicial aims which have underpinned these exchanges are consistent with much of the existing scholarship on judicial diplomacy. At one level, the judges’ aims are jurisprudential. They look to improve the quality of decision-making at home and at the supranational level by discussing recent case law developments, exchanging views on the application of legal principles, explaining features of domestic law and thereby protecting domestic constitutional interests. However, these are also tied to strategic aims: maintaining good inter-institutional relations with supranational judges and maximising their influence at the supranational level.
The determination to continue with these engagements in the context of Brexit underlines the significance which they have acquired in the minds of senior judges. It is also a powerful signal of the lasting sense of institutional autonomy which has resulted from the quiet revolution ignited by the Constitutional Reform Act. Nonetheless, there are challenges arising from this work. The conditions of confidentiality under which the meetings take place may threaten the perceived impartiality of the participating judges. The use of more consistent and comprehensive reporting on these activities by the judiciaries could help to alleviate this difficulty without compromising their effectiveness. Providing detail and clarity about the purpose of these encounters will also be particularly crucial in the context of Brexit in order to prevent misunderstandings or deliberate misrepresentations of the nature of the relationships between UK and supranational judges. In doing so, it may also help to secure a stable place for judicial diplomacy in the UK's changing constitution.
