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Judicial Leadership and the Rule of Law 

Judicial Leadership and the Rule of Law 

A webinar held on 29 June 2022 in memory of the late His Honour Judge Roger Elsey, Resident Judge in the Sovereign Base Area of Akrotiri and Dhekelia from 2019 until 2021.

On 29 June 2022, the School of Law of the Cyprus Campus of the University of Central Lancashire (UCLan Cyprus) was privileged to host a webinar in memory of His Honour Judge Roger Elsey, Resident Judge of the Sovereign Base Areas from March 2019 until his unexpected death in October 2021.  The webinar paid tribute to his multi-dimensional contributions to the Rule of Law, the proper administration of justice, the pastoral care of judges, international judicial relations and legal education. You may view the full programme here: https://www.uclancyprus.ac.cy/judicial-leadership-and-the-rule-of-law/

The first person to speak was Professor Stéphanie Laulhé Shaelou, Head of the School of Law, Professor of European Law and Reform at UCLan Cyprus and Chair of the webinar.  She delivered a welcome address which outlined the career of HHJ Elsey, his relationship with UCLan Cyprus and the rationale behind the webinar, which the School of Law organised after initially consulting the family of the late judge and the Judiciary of England and Wales and, thereafter, the authorities in the Sovereign Base Areas of Akrotiri and Dhekelia, the British High Commission in Nicosia and the Judiciary in the Republic of Cyprus. The Chair thanked them all. Sharing with the participants some photos of happy moments at UCLan Cyprus campus where HHJ Elsey was a regular visitor, she emphasised his wisdom, setting out the best example both inside and outside his courtroom, participating to legal education both formally and informally, and how much he will be missed both within and beyond the Judiciary, across jurisdictions.

The Keynote Speech was entitled ‘Judicial Leadership and the Rule of Law’.  It was delivered by The Hon. Mr Justice Mark Bishop, Presiding Senior Judge in the Sovereign Base Areas, who kindly stepped in to replace The Hon. Mrs Justice Cheema-Grubb DBE, who was unable to attend the webinar, as originally planned.   

Mr Justice Bishop began his Keynote Speech (available open access here) here by recalling that HHJ Elsey ‘had enjoyed a distinguished legal career at the Bar and as a District Judge in the Magistrates Court’ before his appointment as Resident Judge in the Sovereign Base Areas.  Mr Justice Bishop explained that ‘to be a good judge’, it is necessary to ‘bring wisdom and good judgement to your work with a keen sense of fairness and empathy for your fellow man and woman.’  Mr Justice Bishop characterised HHJ Elsey as ‘a very good judge’ who ‘had those qualities in abundance.’ 

In the main body of his Keynote Speech, Mr Justice Bishop reached back into literary and legal history before saying that ‘for an example of judicial leadership I think we need look no further than Lord Atkin’s dissenting judgement in Liversedge v Anderson [1942] AC 406 [which is freely available online on the website of the British and Irish Legal Information Institute (BAILII) www.bailii.org/uk/cases/UKHL/1941/1.html].’  Mr Justice Bishop recalled that, at the height of the Second World War, Lord Atkin exercised the courage to disagree with his fellow Law Lords who had lined up to support the Home Secretary.  In so doing, Lord Atkin famously observed that:  

‘In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. …’.  

Reverting to the theme of judicial leadership, Mr Justice Bishop noted that ‘Lord Atkin came under great pressure to change his judgement in the midst of war.’  Yet: ‘In an exceptional example of judicial courage and leadership, he did not.’  Indeed: ‘As time went on this great dissenting judgement has been recognised as authoritative, and the views of the majority wrong.’   

In saying this, Mr Justice Bishop evidently had in mind the observations of, among others, Lord Diplock in the then Appellate Committee of the House of Lords in R v Inland Revenue Commissioners, ex p. Rossminster Ltd [1980] AC 952 (which is freely available on the website of BAILII at www.bailii.org/uk/cases/UKHL/1979/5.html and Lord Neuberger of Abbotsbury MR in the Atkin Lecture of 5 November 2009 (the transcript of which is freely available on the website of the National Archives of the United Kingdom at https://webarchive.nationalarchives.gov.uk/ukgwa/20100811142102mp_/http://old.judiciary.gov.uk/docs/speeches/mor-atkin-lecture-nov2009.pdf).  

Mr Justice Bishop moved on to venture the following thoughts, which linked the case of Liversidge v Anderson to the Rule of Law:  

‘I think the example of what happened in the judgements of the House of Lords in Liversidge v Anderson illustrate that the Rule of Law is not to be understood simply as what the majority in the Supreme Court or the House of Lords have held to be the law at any particular time; nor can the Rule of Law simply be what statute enacts. The Rule of Law is based on a more fundamental set of truths.’ 

Mr Justice Bishop then analysed the meaning and implications of the Rule of Law.  He did so with reference to the late Lord Bingham, whom he described as ‘a modern judge who demonstrated great leadership in support of the Rule of Law.’  Mr Justice Bishop went to great lengths to explore the principles laid down by Lord Bingham in a landmark lecture on the Rule of Law which the latter delivered in the University of Cambridge on 16 November 2006.   

Mr Justice Bishop echoed the conclusion reached by Lord Bingham, who held the distinction of having served as Master of the Rolls (1992-1996), Lord Chief Justice (1996-2000) and Senior Law Lord (2000-2008).  According to this conclusion, judges ‘are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live’.  Addressing the lawyers and judges from the Republic of Cyprus who were in the audience at the webinar, Mr Justice Bishop added: 

‘I am delighted that as lawyers and judges operating in our respective courts and jurisdictions, we are able to share in the guardianship of this flame and reflect together on these great principles which are so important to the sustenance of a peaceful democratic rules based world.’ 

Mr Justice Bishop ended his Keynote Speech by ‘commending’ UCLan Cyprus and its School of Law: 

‘[Y]ou are uniquely placed to be a forum where these principles [of Lord Bingham] are articulated and discussed being at the crossroads of 3 continents – which are all places which need these principles as never before. And I think you can bring particular insights into these issues through your physical location in this part of Cyprus which lives with the continuing consequences of conflict. I wish you well in the impressive research and project work in which this School is engaged.’ 

(A transcript of the lecture entitled ‘the Rule of Law’ and delivered by Lord Bingham is freely available on the website of the University of Cambridge at www.cpl.law.cam.ac.uk/sir-david-williams-lectures/rt-hon-lord-bingham-cornhill-kg-rule-law; the academic article based on the transcript of the lecture has been published by The Cambridge Law Journal in the March 2007 edition of the Journal at www.cambridge.org/core/journals/cambridge-law-journal/article/abs/rule-of-law/0E971B5BB930C2E363D351C5CBC3B855; and the book by Lord Bingham entitled The Rule of Law and published in 2010 may be purchased from the publisher at www.penguin.co.uk/books/56375/the-rule-of-law-by-tom-bingham/9780141034539

The Keynote Speech was followed by much shorter speeches delivered by three other guest speakers: The Hon. Judge Michelle Brewer, Judge of the First-tier Tribunal, Immigration and Asylum Chamber, Her Majesty’s Courts & Tribunals Service; The Hon. Judge Elias Georghiou P.D.C., President of the Assize Court in Limassol in the Republic of Cyprus; and Dr. Klearchos A. Kyriakides, Senior Visiting Fellow in the School of Law of UCLan Cyprus.     

Judge Brewer considered ‘HHJ Roger Elsey’s commitment to pastoral support’.  On this theme, she offered a personal perspective based on her interactions with HHJ Elsey and ‘the key traits that he displayed as a leadership judge’.  She also remembered his ‘very significant impact’ on her after she entered the judicial community, the role he performed in terms of helping her find her feet there and the guidance that he provided within the spirit of pastoral care.  In the view of Judge Brewer, HHJ Elsey ‘epitomised all that is best in judicial leadership’.  This was exemplified by, among other qualities, his ability to listen, engage and tap into the potential of each person he was listening to.   

During her speech, Judge Brewer also drew attention to the ‘shared interest’ that she and HHJ Elsey both had in confronting what she described as ‘the global problem of human trafficking’.  This was illustrated by the support they had both given to the Smuggling and Human Trafficking Across the Green Line Project based at UCLan Cyprus.  (Details on that Project are at: https://htsproject.uclancyprus.ac.cy/

Judge Georghiou dwelt on ‘HHJ Roger Elsey’s commitment to judicial dialogue with peers in the Republic of Cyprus’.  Judge Georghiou indicated that a friendship emerged from his professional dealings with HHJ Elsey whom he described as ‘a decent, humane, courteous, thoughtful, open-minded, remarkable, reliable and steadfast pillar who significantly contributed to the preservation of the administration of justice.’  Judge Georghiou moved on to invoke the words of Socrates, the ancient Greek philosopher, who identified the four essential qualities of a good judge as being ‘firstly, to hear courteously, secondly, to answer wisely, thirdly, to reason sensibly and fourthly to decide impartially.’  Judge Georghiou hastened to add that HHJ Elsey possessed all four of these qualities.   

On the subject of HHJ Elsey’s judicial dialogue with peers in the Republic of Cyprus, Judge Georghiou explained that in his conversations with him, HHJ Elsey displayed an interest in learning about the Cypriot judicial system, but he particularly enjoyed discussing how the rights and freedoms set out in the European Convention on Human Rights were being applied at a national level in the Republic of Cyprus.  For these and for other reasons, Judge Georghiou concluded that HHJ Elsey was ‘fully committed to the Rule of Law.’    

Dr Kyriakides focused on ‘HHJ Roger Elsey’s contribution to legal education’, which he portrayed as ‘a paradigm of lasting value’.  After recalling the educational support extended to him and his students by HHJ Elsey, Dr Kyriakides suggested that ‘the Elsey Paradigm’ is not only effective.  It is also straight-forward, for it embodies just three pillars.   

According to Dr Kyriakides, the first pillar of ‘the Elsey Paradigm’ is represented by the careful balancing act performed by HHJ Elsey in his educational dealings with UCLan Cyprus.  On the one hand, ‘he projected the authority and the aura of a judge and, thus a member of the Judiciary’ who ‘maintained the dignity and prestige of the Judiciary.’  Meanwhile, ‘on the side of the balancing act, what HHJ Elsey managed to do was to be approachable and to remind everybody that he interacted with that, as a judge, he was an integral part of the society he served.’  Dr Kyriakides went on to stress: ‘This balancing act is absolutely critical in terms of ensuring that the Judiciary maintains the respect that it must have from the public.  It also ensures that the judge is able to interact with society and is not a detached figure that operates in the shadows.’ 

The second pillar of ‘the Elsey Paradigm’ is HHJ Elsey’s appreciation of a fundamental distinction – between, on the one hand, a carefully worded public lecture given by a judge in a public setting before members of the public and, on the other hand, a much more frank address given by a judge to law students in a classroom and, accordingly, in a more intimate setting before a small group of students at the coalface of the legal education system.  Dr Kyriakides indicated that each of these two approaches is educationally enriching, but each one has certain advantages that the other does not.    

The third pillar is HHJ Elsey’s understanding that ‘a courtroom is not just the place where justice is delivered but an integral part of the legal education system.’  That is why HHJ Elsey made his court ‘a welcoming environment for students generally but law students in particular.’  This approach was in line with the principle of open justice and consistent with the practice adopted by other judges in the Sovereign Base Areas, as previously discussed on the occasion of a webinar on Open Justice to which HHJ Elsey participated and which can be accessed here: https://www.uclancyprus.ac.cy/open-justice-transparency-and-the-judiciary-2/ .  That being said, Dr Kyriakides indicated that HHJ Elsey was following in a tradition maintained by the Diversity and Community Relations Judges in England and Wales.  (These Judges are listed on the website of the Judiciary in England and Wales at www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/list-of-members-of-the-judiciary/diversity-and-community-relations-judges-list/ and their educational role is detailed at www.judiciary.uk/you-and-the-judiciary/judiciary-within-the-community/diversity-and-community-relations-judiciary-2/

In conclusion, Dr Kyriakides argued that ‘the Elsey Paradigm and its three pillars may be applied by any judge in any court in any country in any part of the world.’ 

What followed the Keynote Speech and the three guest presentations was a question-and-answer session.  This created an opportunity for a number of attendees to pay tribute to HHJ Elsey or otherwise reflect on his life.  Those who spoke included Sue Elsey, his widow, and other members of his family whose presence at the webinar was very much appreciated.  The many other attendees included members of the judiciary, members of the legal profession, academics and students from the United Kingdom, the Republic of Cyprus and further afield. 

Towards the end of the webinar, some poignant closing remarks were issued by Mr Justice George Erotrocritou (Retired), former Judge of the Supreme Court of the Republic of Cyprus and Director of its Judicial Training School, Tribunal Judge Brewer and Mr Justice Bishop.  A profound discussion also took place on what it meant to have moral or judicial courage, prompted by an interview given by Professor Laulhé Shaelou a few days ahead of the webinar at which journalist Saskia Constantinou referred to the jurisprudence of HHJ Elsey and to its societal impact. Professor Laulhé Shaelou brought the webinar to a close by thanking everybody who supported it, particularly the members of the family of HHJ Elsey, who were so receptive to the idea of instigating it. 

Throughout the webinar, what shone through was the affection with which HHJ Elsey was held by so many people in so many places, the positive impact he had in so many different domains and the profound sorrow caused by his premature death.  It is hoped that, in memory of HHJ Elsey, the webinar will be of lasting educational value.  Hence the availability to the public of the items listed below.  Alongside this record of the proceedings of the webinar, these items may be used in support of the education of judges, lawyers, students and members of the wider public.   

For the invitation to the webinar, which includes brief biographical details on the career of HHJ Elsey, please visit www.uclancyprus.ac.cy/wp-content/uploads/2022/06/Webinar-in-Memory-of-Judge-Roger-Elsey-Judicial-Leadership-and-the-Rule-of-Law.final2-pdf.pdf)  

For a full recording of the webinar freely available, please visit https://www.youtube.com/watch?v=OWAqsoiXvP4&t=6769s