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March 26, 2017

Should the judiciary speak out more?

I don’t often agree wholeheartedly with the Lord Chancellor, but when it comes to who should stand up for the judiciary and how, we are at one.  This week the disagreement between the judiciary and Liz Truss as to whether she defended them sufficiently over article 50 came to a head. The Lord Chief Justice told the Constitution Committee of the House of Lords that Liz Truss did not understand her constitutional duty to defend the judiciary: “to my mind she is completely and absolutely wrong about this…and I am very disappointed”.

I am not a constitutional expert, but I know that the position is not as clear-cut as the Lord Chief Justice implied.  What the judiciary seemed to demand was that the Lord Chancellor publicly and directly contradicted the Daily Mail ie that she should have said that the paper was wrong to say these judges are enemies of the people. But as Professor Graham Gee has pointed out, there was no constitutional imperative for her to speak out publicly at all since the 2005 Act stripped her “office of the attributes that previously made its occupants well positioned to defend the independence of the judiciary (i.e. the requirement to be legally qualified, sitting in the Lords, with the person appointed to the role typically in the twilight of their professional career). This does not mean that Lord Chancellors cannot defend judicial independence; they can and do. But it does mean that there will be limits on the ability of the officeholder to serve as an effective guardian of judicial independence”.

In fact Liz Truss did and continues to openly defend the independence of the judiciary, she just refuses to criticise individual stories.  She has not openly criticised any judges, unlike previous Ministers like Michael Howard who criticised the judgment of Lord Dyson in allowing a judicial review of the early release of some IRA prisoners.

Liz Truss has called for members of the judiciary to be more active in promoting their own independence.  And, as Graham Gee points out, any number of judges could have given interviews in defence of the judiciary in the wake of the Article 50 “attack” – the only ones excluded were the three High Court judges, and the Supreme Court judges who were directly involved in the appeal.  Liz Truss explained to the HoL “There is still a myth around the Kilmuir rules. Those rules about judges not being able to speak out in public were abolished in the 1980s and yet there is still sometimes a reticence to do so. In the modern age where everybody is subject to scrutiny, whether you are a captain of industry or church leader, it is important for that profession to talk about what it does”.  A week later the Lord Chief Justice countered that they did understand the Kilmuir rules and judges spent a lot of time explaining how the judiciary worked.

Again I’m with the Lord Chancellor. In reality the judiciary communicate mainly through speeches, often given to audiences abroad, few picked up by the media.  And only a select few senior judges are usually allowed to make speeches or speak to the press.  Most district, crown court and High Court judges would never in their whole career speak to the press – partly because the process to get permission is slow and labyrinthine, and partly because there is a culture of reticence. Magistrates, who have non-justice lives, are keener to talk to the press, but they too are silenced if they step out of line. There used to be several anonymous magistrates’ blogs, which really helped illuminate the justice system.  Now there are no sitting magistrates blogging.  And the judicial complaints office regularly adjudicates against those who transgress:

“Mr David King, a magistrate appointed to the South East Hampshire Local Justice Area, was subject to a conduct investigation having posted a message on Facebook concerning a court case he had adjudicated on as a magistrate. The Lord Chancellor and Mrs Justice Cheema-Grubb, on behalf of the Lord Chief Justice, considered that Mr King’s behaviour fell below the standard expected of a magistrate and have issued him with a reprimand” (Feb 2017).

If the judiciary are to defend their independence and promote understanding of the criminal justice system, they need a new approach – ordinary judges and magistrates should be encouraged to interact more with the public and the press outside the courtroom, and minor transgressions should be dealt with lightly.  There are red lines – judges should never discuss particular cases and should steer clear of commenting on policy – but anything else should be fine. I once tried to get permission for a gay magistrate to speak out about the importance of diversity.  This would have benefited efforts to recruit more diverse magistrates. But the magistrate was banned from doing so.  Until the judiciary are freed from the fear of speaking out, I fear they will continue to feel “victimised” by the press, and let down by politicians.