ACTIVISM OR CREATIVITY?

The best reason for the development of the common law, acting as a secondary legislature, is the case of Jones v Kaney.^[20] It is as good an illustration as any of the duty of a judge (particularly an appellate judge).

I have cited in extenso the remarks of Lord Dyson MR on his observation in the Supreme Court in two separate judgments, sim­ply because of his willingness (with others) to alter the law of immunity for legal liability of expert witnesses before the courts, without more ado. The two out of seven dissenters in Jones v Kaney - Lord Hope and Lady Hale - were disposed to the change in the law, but only after acceptance by Parliament of the immunity of wit­nesses, often orally, in the courtroom. Lord Dyson was absolutely right in his mild and decorous denial of such a judicial function of deference to Parliament. Good government of these domestic issues demands a trilogy of powers that includes a principle of parliamen­tary primacy in law-making which, properly constituted, leaves certain policy issues to Parliament to decide. But the mere incanta­tion of parliamentary supremacy in law-making is far from abso-

The Scope of Judicial Review and the Rule of Law 19 lute. It requires a judicial reasoning for forgoing the parliamentary powers - at common law at least - to override the activities of higher judiciary. What are the distinctions of these powers of law­making? I deal here only with the question of delay that accompa­nies actions from Parliament.

Ever since 1554 in Buckley v Rice-Thomas,^{[21] [22] English judges have treated the expert who gives advice only on technological or scien­tific matters as witnesses per se, and alike for immunity from suit for what they say in the witness box (and probably preparatory to such testimony). Whether this was historically correct has been doubted. Whether relevant today, the fact has been that for four or more cen­turies experts have been treated the same as witnesses. Throughout that period Parliament has not pronounced upon the matter. It took 30 years even for the courts themselves to reverse the rule in Rondel v Worsley,w in which I unsuccessfully sought to remove the immu­nity of barristers for what they said in the course of legal proceed­ings, although Lord Lowry in 1994 in Spring v Guardian Mutual Assurance[23] said that he could not understand why my argument had not been accepted. The fact is that the immunity for those acting in the courtroom had not been the subject of parliamentary activity over a number of years.}

I gave examples of how the activities (or inactivities) of Parliament, often prompted by political decisions, should not, in themselves, constitute deferment to parliamentary discussion, debate and deci­sion-making. The reasons, good or bad, for non-activity of Parliament should never be regarded as good government. The courts them­selves, in considering passing the buck to Parliament, must take account of the passage of time that is the inevitable consequence of legislative action at primary instance. The two examples I give are to the point. Barbara Wootton once wisely remarked that one should give at least two examples for any generalisation - so here goes!

The first example is that of Jones v Kaney. For some years now - quite apart from its origins in the sixteenth century - Parliament has been made aware of the deficiency in the expert witness system. Both the bodies of the Academy of Experts and the Expert Witness Institute since the 1980s have pointed up the problems of expert witnesses.

Without expatiating on its origins, the subject of the admissibility of expert evidence in criminal proceedings in England and Wales arose in a consultation paper (No 190) from the Law Commission in 2009 and its final report (No 325) together with a draft Bill of some 11 clauses and one Schedule to the House of Commons on 21 March 2011. The closing date for agreement on the report was 20 February 2011. The judgments in Jones vKaney (amounting to 190 paragraphs) before the UK Supreme Court were delivered in January 2011.

The draft Criminal Evidence (Experts) Bill would give authority to enforce principal recommendations. The relevant department, the Ministry of Justice, has declined, so far, to recommend to Ministers that primary legislation is required: instead they insist that the recommendations can be implemented administratively. The Law Commission view is that nothing short of primary legisla­tion will suffice. The dissenters in Jones v Kaney seemed unaware of these promptings from the Government’s chief law reform agency. Had they been aware of these administrative talks they would have been in a better position to judge whether the simple legislation dealing with the admissibility of expert evidence in criminal trials should be legislatively enacted, before concluding that Parliament should first consider the policy issues posed by Jones v Kaney.^[24]

The Supreme Court, in Jones v Kaney, had to decide whether to abolish the rule that a witness could not be sued in negligence by his client. The case was a classic instance of rival views about judi­cial restraint on non-governmental legislation. The justification for the immunity accorded to lay witnesses is long-standing and is based on policy considerations which are well understood. The immunity enjoyed by expert witnesses from liability to their clients had also been established, although it was a less well entrenched principle, even if its origins were misunderstood historically.

The Scope of Judicial Review and the Rule of Law 21 nesses would be harassed by vexatious claims for breach of duty; or that the removal of the immunity would engender a risk of multi­plicity of suits.

The dissenters took the cautious and ‘non-activist’ line. Lord Hope said that the lack of a secure principled basis for removing the immu­nity from expert witnesses; the lack of a clear dividing line between what is to be affected by the removal and what is not; the uncertain­ties that this would cause; and the lack of reliable evidence to indi­cate what the effects might be, all suggested that the wiser course would be to leave matters as they stood. Lady Hale saw the proposed abolition of immunity as an exception to the general rule that wit­nesses enjoy immunity from suit. She asked rhetorically how far the exception should go. Did it cover all classes of litigation? In particu­lar, how far beyond ordinary civil litigation did it go, and did it cover all or only some of the witness’s evidence? It was impossible to say what effect the removal of immunity would have, either on the care with which the experts give their evidence, or on their willingness to do so. It was not self-evident that the policy considerations in favour of introducing the exception to the general rule were so strong that the court should depart from previous authority to make it. It was ‘irresponsible’ to make such a change on an experimental basis. Issues that affect the process of litigation call for judicial action, and not to await policy issues that are politically neutral.

There is another, essentially human, factor at work. That is judi­cial temperament. It is an inescapable fact that some judges are more traditional in their approach than others. As Lord Dyson MR said on 6 November 2012 in the annual lecture for ALBA,

some are cautious and prefer to paddle in the warm and safe shallows of clear precedent. Others are more adventurous and are prepared to give it a go in the more treacherous waters of the open sea... But history has shown that the product of today’s buccaneer sometimes becomes tomor­row’s orthodoxy.

We need both varieties, but must not spurn the advocate who dis­plays a vision of better government tomorrow.

The second example is the more telling, and socially important. It involves the basis of our law on homicide. As long as 30 years ago, Lord Mustill began his judgment referring to the English law as ‘a conspicuous anomaly’ and went on to explain that the law was ‘permeated by anomaly, fiction, misnomer and obsolete reasoning’. But he looked to Parliament to remedy the situation. ‘I am willing to follow old laws until they are overturned, but not to make a new

law on a basis for which there is no principle’. Lord Mustill reaf­firmed his statement five years later when he said: ‘Only Parliament has the powers, if it will choose to exercise them. It may not be a popular choice, but surely it is justice that counts’. He might have added the words extracurially uttered by Lord Devlin, who once said in an essay entitled Judges as Lawmakers²¹ that ‘it is for Parliament to change the law. But these protestations ring hollow when Parliament has said, as loudly as total silence [and even with expression] can say it, that it intends to do nothing at all’, and even says it by proclaiming that nothing will be done.

What happened then? The Government, no doubt spurred on by such demands for legislation, referred the partial defences to the charge of murder to the Law Commission in 2003. The report ulti­mately provided the answer, but stated that the legislation could be complete only if the whole of murder and manslaughter were referred for legal reform.