Professor Sir Mark Hedley gave the 2022 Conkerton Memorial Lecture on 12th October 2022.
John and Mary Conkerton are still fondly remembered by many practitioners throughout Merseyside for their enormous contribution to legal education in Liverpool, initially on the Finals Course at Liverpool Polytechnic (now Liverpool John Moores University) and later the Degree Courses at Liverpool University. After they both died in 1979, the Conkerton Memorial Fund was established by a charitable trust deed on 9 September 1980 and this Lecture is held with the specific intention of bringing together the legal profession and students of law at the universities of Liverpool. Below is the lecture given by Sir Mark, reproduced with his kind permission:
“In his seminal work “The Rule of Law”, the late Lord Bingham wrote: “Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion.” He goes on later to say: “No discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.” I think that in so speaking he was reflecting the views of many who have considered this subject. Not only do we need to avoid arbitrary justice where outcome is dictated by political, judicial or any other expedience but also we do not want to revert to the old battles of law and equity where justice could be as variable as the length of the Lord Chancellor’s foot or, indeed, individual judicial prejudice.
In his discussion Lord Bingham makes no reference either to the family jurisdiction (with which he had become familiar in the appellate courts) or to the Court of Protection. Yet it is in these jurisdictions that discretion is given the greatest rein and in which the exercise of that discretion is often at its most controversial. I venture to think that Lord Bingham did not consider these jurisdictions to be in conflict with his essential proposition and it is my contention that they are indeed not opposed but complementary. That said it is also necessary to recognise the risks and potential dangers of a wide-ranging discretion.
In this lecture I will make some reference to the criminal law but my essential concern is those jurisdictions in which a judge sits alone without either members (as in Tribunals) or a jury. Not only does that represent the greater part of my judicial experience but it is also the area in which we see the greater risks associated with judicial discretion.
It is perhaps worth starting with the reminder of the five functions of the judge in any trial. To a great extent this applies to every case whatever the subject matter and whatever the jurisdiction. I know that you will understand, however, why my illustrations are mostly drawn from family and Court of Protection cases. Indeed most of them will come from cases that I have in fact tried.
First, the judge is required to preside over and conduct the trial in accordance with the law and the relevant Rules of Court. Secondly, he or she is required to find the facts on which the judgment is to be founded. Thirdly, the law to be applied to those facts must be discerned and determined. Fourthly, there is an exercise of judgment involved: have the threshold criteria in Section 31(2) of the Children Act 1989 been satisfied, have grounds for possession been made out, is there a sufficient foundation for the granting of an injunction, has incapacity under the Mental Capacity Act 2005 been established? It is then, and only then, that the question of discretion can arise: what does welfare require, on what terms should possession be granted, is it just inconvenient to grant an injunction?
I have gone through that, familiar as it will be to any practitioner, simply to demonstrate that judicial discretion comes into play only at the end of a process regulated by law. Of course in many cases the exercise of discretion is the most, if not the only, contentious question in the case. Nevertheless, it is governed by the earlier stages even if they are not disputed. That forms an essential intellectual and conceptual framework within which we can turn more specifically to the exercise of discretion.
At this point we need to recognise another factor that may cause discretion to be seen as controversial and that is the well established reluctance of the appellate courts to interfere with the exercise of discretion. The reality is that they will not interfere where a judge has reached a conclusion that was reasonably open on the evidence. The equivalent criminal approach can be found in the tests employed in interfering with a sentence: wrong in principle or manifestly excessive or unduly lenient – the adjectives are telling. Whilst, of course, the appellate courts are not universally consistent in their approach, this does represent the norm. Shortly before I retired, I received a judgment from the Court of Appeal which began: “There was not a professional in court who was not astonished when the learned judge announced his decision.” That was true but the Court still declined to interfere because my reasoned conclusion was open to me on the evidence. There is no doubt that this appellate reluctance, which I well understand, has contributed to the controversial nature of judicial discretion.
There is another feature that separates the exercise of discretion from other functions of the judge. For the most part a trial looks back to find facts, determine rights and to provide, where justice so requires, effective remedies for the breach of those rights. Discretion, however, tends to look ahead. Welfare decisions are shaped by the future needs of children and protected persons; decisions on possession reflect future needs and abilities to pay, a sentence that exceeds or falls short of guidelines may reflect future deterrence or future reformation. Discretion is thus inevitably a rather more speculative exercise and no doubt that contributes to its controversial nature and raises questions of risk of misuse.
At the end of the day, however, the ambit of judicial discretion is defined by law. Parliament confers it and Parliament may withdraw it. An obvious example lies in the field of the division of matrimonial property after divorce. In England and Wales, it is governed by Section 25 of the Matrimonial Causes Act 1973 (as amended). This confers a discretionary jurisdiction, after taking into account all the matters set out in the statute, to produce a fair and just result. In Scotland, however, as in many continental jurisdictions, the division of property is rule-based allowing for very little discretion. This has the merits of clarity and being easy to predict and to advise on, and therefore reducing contested applications to the court, but it does mean the need to tolerate unjust outcomes in some cases. This is, of course, a matter for Parliament, essentially a political decision. Just as it was a political decision to confer the discretionary welfare jurisdictions for children and protected persons, to leave some discretion in sentencing rather than imposing a grid system and to allow discretion in housing cases and in relation to equitable remedies. In this sense too discretion is subject to regulation by law. That can be further illustrated by the requirement in the Children Act 1989 that factual threshold criteria must be established before the discretionary welfare jurisdiction could come into play. That was in marked contrast to the then prevailing Wardship jurisdiction where a care order could be imposed on welfare grounds alone whatever the facts may have been.
There are, however, more insidious risks implicit in the exercise of discretion and in order to tease these out, I propose to focus principally on the welfare jurisdiction in relation to children (including adoption) and protected persons under the Mental Capacity Act 2005. Of course judges exercising this jurisdiction are often seen by other judges as a race apart.
Welfare and best interests (the terms are legally interchangeable) are value-laden concepts and, as such, are liable to change with the times. Much of what was argued in front of me, I would never have argued to my predecessors in the 1980s, same sex parenting being a prime example. The difficulty is less with changing values than in deciding whose values apply. I suspect that my predecessors of 60 years ago would have described their task in family law as being applying the agreed norms of society to the facts as found. Then it would have been possible to talk of agreed norms of society (even if not everyone chose to live by them); today, such is the diverse nature of our society, it is almost meaningless.
There are perhaps three relevant sources of values: society, the family involved in the case and the judge. There are some things upon which society are broadly agreed. For example, whatever culture may teach, our society is opposed to FGM. On the other hand there is no such view on male circumcision and here it may be the values of the family in which the child is actually to grow up that may be decisive. It is, however, wrong to leave out of account the values of the judge. It cannot be irrelevant (can it?), in terms of deciding whether to sanction the withdrawal of treatment, as to what that judge believes about what, if anything, happens after death. In that rather uncertain cocktail of values, a judge not only has to reach a decision but be reasonably certain that most other judges would have reached one similar. A reasonable degree of consistency is, after all, an important ingredient of public justice.
It may be worthwhile to look at two worked examples to see how this finds practical expression. Let us take a case of the permanent removal of a child from the jurisdiction and one of placing a child for adoption.
In the first case an English man married a Russian woman and they settled in England and had a child with the mother taking the role of primary carer. In due course their relationship floundered and they separated; the child remained with the mother but regularly saw his father. Then the mother appreciated that she was now entirely isolated in this country with no family, no work and few friends. She wished to return to Russia with the child to live in a tower block on an estate outside Moscow. Although she promised contact to the father, it could only be enforced in the last resort by a Russian court. What was to be done? The trial was straightforward and the basic facts and law were agreed. Clearly both sides had made out a case for what in truth were wholly incompatible outcomes and a discretionary choice had to be made. I allowed the application as I believed that she was genuine about contact and that the parties had agreed she would be the primary carer and were therefore taken to have agreed that in the event of separation. That was, of course, a decision with lifelong consequences for all and it was a discretionary decision and was not the only reasonable option available: no wonder discretion is controversial.
In the second case, a young disabled boy was being brought up by grandparents. The parents were substance users and, though concerned, were incompetent parents. Their siblings all had families of their own. The grandparents had voiced their concern to social services that the physical demands of caring could not be sustained indefinitely. The response of the local authority was that, having considered the lifelong needs of this child, he should be in the care of those able to deliver that and ideal adopters had been found. The view was wholly logical but profoundly controversial. Nevertheless, all acknowledging that threshold was met in respect of the parents, a discretionary decision on welfare grounds had to be made. For reasons that you may be able to guess, I refused to remove the child but again it was not the only reasonable option available. Only the future will tell whether I was just kicking the can down the road and judges usually never discover what in fact happened next.
One reason for choosing welfare examples is that both Parliament and the appellate courts have deliberately and studiously refused to define welfare or best interests, as those concepts are so fact specific that a definition to cover all contingencies could simply not be found. Combine that not only with the immensity of the consequences of a decision but also (assuming the judge knows his or her job) the fact that such decisions are effectively unappealable, then it is unsurprising that such discretion stokes controversy and involves risk.
Nowhere is that more clearly to be seen than in those medical cases involving the withdrawal of life-sustaining treatment. Let me take an example of a child who suffered catastrophic injury as a result of an accident at home for which no one was to blame. He was sustained on multiple life-giving appliances and treatment. The medical team were convinced that all treatment was now futile and should be withdrawn. The parents not only asserted that whilst there was life there was hope but also that they had detected signs of responsiveness in the child. Again the trial was straightforward and the evidence essentially uncontentious. Since this case was under the inherent jurisdiction, the law simply required a best interests decision. The evidence clearly required a choice to be made and that choice was inevitably an exercise in discretion. One of the problems was that we live in a culture in which it is very hard to articulate in welfare terms a course of action which (as here) would inevitably lead to death.
I decided to authorise withdrawal. The gravamen of that decision was that, whilst it was hard to say what a good death for an infant was, it was quite easy to describe a bad one: wired up to a machine, isolated from all human contact, in the course of futile treatment. If this child must die, as sooner or later he would die very prematurely, he should die in the arms of his parents. In the event the parents accepted this and he died the next day. I think that most of my colleagues would have reached the same decision but may have expressed their reasoning very differently Once again the discretionary jurisdiction is required to do some very heavy lifting in relation to decisions that are both profound and controversial. This is clearly indicated by the much greater controversies generated by the three more recent and well publicized child cases.
Thus we need to recognise the prominent place that the discretionary jurisdiction has acquired particularly in family law and in the practice of the Court of Protection. It is because of this, that I have strongly favoured this work being done in public, subject to the protection of confidentiality. It seems to me that if we are to exercise these powers in the name of society, we should have the consent of that society and that can only be forthcoming if what we do is widely known and understood. I think that the law and the judges should have nothing to fear and much to gain by the public exposure of what we are required to do.
In the end can we really sustain the proposition that the discretionary jurisdiction is only complementary to and is regulated by the law? My contention is that we can and to do so, I return to the five tasks of every judge trying the case alone. Every case has to be presided over and controlled in accordance with the law and Rules of Court. Sometimes those are very prescriptive and sometimes very flexible, as for example where a child is required to give evidence. Every case requires the judge to find the facts and those form the matrix within which all other decisions are made. Every case requires the judge to discern and articulate the applicable law whether statutory or derived from decided cases. Every case requires an act of judgment. Whatever the welfare needs of the child in public family law proceedings may be, they are of no concern to the judge unless and until satisfied that on the facts as found the threshold criteria are satisfied. If they are not, the judge may not intervene whatever the view may be about the welfare of the child. There are cases in which society must tolerate harm to a child if that harm does not reach the threshold of “significant harm”.
Again under the Mental Capacity Act 2005, the only gateway to the welfare jurisdiction is a finding of incapacity. A failed suicide, who would die if not pumped out, may nevertheless refuse treatment if he has the capacity to do so. I shall not forget the out-of-hours case in which I found that incapacity had not been established and the man died that very night. Our law places a high value on autonomy; my view on welfare was simply not legally relevant. All that is designed to demonstrate that the discretionary jurisdiction has no independent existence. It comes into play only when permitted by law to do so and the law may regulate the ambit and exercise of discretion should society so wish.
The truth of the matter, of course, is that society does not so wish in most of these cases. The idea of a child or a protected person’s best interests being regulated by rule is not only ethically unattractive to most but would simply fire litigation frenzy as close analysis of rule and fact and distinctions to be drawn would rule the day. Interestingly, in Islamic family law the future of children of separated parents is initially determined by rules but, as Sharia scholars are at pains to point out, such rules are always subject to a best interests requirement.
Again in areas like housing and the granting of equitable relief, there is much to be said for judges (so long as they can be trusted to do so) having room to do justice on individual facts. Criminal sentencing too should in a civilised society be ruled not by grid but by a judge having freedom, within the guidelines and upon giving reasons for the decision, to do what is fair and just in the individual case.
Rule-based law makes for certainty and, in many areas of social and business life, certainty is an essential ingredient of justice. In those areas discretion should reasonably have a very restricted role. On the other hand there are many areas of human life where certainty simply does not and will not exist, most especially in the field of fraught human relationships. Here, justice and fairness, which include the important obligation of protecting those who cannot protect themselves, may require a much greater degree of flexibility which can in reality only be provided by the exercise of discretion.
At the heart of this lies a very uncomfortable question. Can the judges actually be trusted to use properly and responsibly the very wide discretionary powers that have been given? The answering of this question is hampered by a widespread public ignorance or misunderstanding of what judges do in these areas and what they are required by law to do. It is further hampered by the fact that in common with all humanity, judges are fallible. Mistakes will be made and some error is inevitable in the human condition. The fact that we live in a society in which the tolerance of the errors of others, especially those who hold public office, is rapidly waning is a fact that has to be faced. I think that at present we do have the necessary trust. Certainly people say to me that they would not do my job for anything. Nevertheless, the very nature of judicial discretion as exercised in our society at present means that we would be very unwise to be complacent.”
Professor Sir Mark Hedley
12th October 2022, Liverpool Town Hall