Last week the government moved once again to sort out Britain’s turgidly Blairite, messy constitution by appointing a new chair of its review into the Human Rights Act and review of the role of judges to investigate whether they’ve become too political in recent years. Chosen to head the committee is former judge Sir Peter Gross, who, on the same day of his appointment, gave a speech to Swansea university on the subject of “The Judiciary Today – The Least Dangerous Branch”. Some of his comments are illuminating…

Perhaps most eye-catching is his belief that judges should avoid institutional overreach, and his cutting jibes that judges all the way up to the Supreme Court should maintain the traditional virtue of “Judicial reserve and restraint”. At one point specifically referencing Gina Miller’s second Supreme Court, Sir Peter argues judges should not “court public controversy”:

“And judges ought not to be seen as “celebrities””

A pointed criticism of Baroness Hale and her spider broach?

While these comments might excite Tory ranks who want to see the courts reined in, later in his speech Sir Peter said the courts will have a “major role” to play “in the post-Pandemic and post-Brexit times ahead.” Gina Miller’s ears will be pricked…

Guido’s combed through the speech and gives you Sir Peter’s main points below:

1. There must be “mutual respect between the three branches of the State, avoiding institutional overreach.”

• However while there must be mutual respect, this doesn’t mean all judicial decisions should be uncritically approved

2. Government distaste for a particular court decision – or numerous decisions – shouldn’t result in knee-jerk policy responses

• Gross points to the second Gina Miller cases regarding prorogation of parliament, after which “voices were heard calling for US type “confirmatory” hearings for senior judicial appointments”, something which Sir Peter would be “dismayed” to see introduced

3. This is not to say Gross doesn’t want “careful deliberation”, pointing to a number of options including “wait and see”, statutory correction and calm and measured consideration by way of independent review*

• *This final method also includes the government’s inquiry into judicial review reform, a separate consultation to the one being led by Sir Peter

4. “mutual respect and the avoidance of institutional overreach cuts both ways”

• Gross argues it is a traditional English virtue of the judiciary that they do decide on matters of public controversy and that should remain part of their role.
• However, it is no part of a judge’s role to “court public controversy” and judges “ought not to be seen as “celebrities”.

5. There is a line between “legitimate Judicial development of the law” and “unwarranted judicial law-making

• “That there is no single bright line and that the line is elusive does not mean it does not exist; judgement and Judicial leadership are required to stay on the right side of that line.”

6. Any controversy between the three branches of state cannot and must not be allowed to distract from the judiciary’s major role “in the post-Pandemic and post-Brexit times ahead.”