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Are judges gagged?

Penelope Gibbs
28 Jul 2017

This week the Times announced that Peter Herbert QC (Recorder and Tribunal Judge) is suing the Ministry of Justice for racial discrimination. As Transform Justice’s new publication on rethinking judicial independence suggests, Herbert is articulating widespread frustration with the current “rules” on what judges can and cannot say. Herbert’s clash with the senior judiciary arose from a speech he made at a rally criticising the Election Commissioner’s decision in 2015 to declare Lutfur Rahman’s election as mayor of Tower Hamlets void. At the rally, he is reputed to have said ‘racism is alive and well… sometimes in the judiciary’, a sentiment many may share, but few articulate.

The issue of what judges are openly allowed to say is quite muddy. Sir Alan Moses (former Court of Appeal judge) believes that judges should never be subject to rules on conduct, since rules are too rigid and lack nuance – judges should abide by principles, and be judged by peers if those are contravened. The problem with this approach is that the principles themselves can seem vague, and their interpretation subjective. The disciplinary judgment on Herbert said his“comments were inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct” and he was offered “formal advice”. But there is nothing specific about how his comments were inappropriate.

Herbert is particularly exercised, since he believes his treatment derives from racial discrimination. Other judges, who have been disciplined for speaking out, feel there are fundamental flaws in the system which affect all. Bernard Hunter had been sitting as a magistrate for many years when the criminal courts charge was introduced in 2015. It was a charge which had to be imposed on every person convicted of a crime, regardless of means. Many magistrates were very unhappy about having to impose the charge. Some resigned, some publicly.

Bernard Hunter was very unhappy about the inequity of the charge and took temporary leave of absence from sitting. He wanted to resign but in a way that drew attention to the issue, so he got in touch with Law in Action (BBC Radio 4 programme on legal matters). Joshua Rozenberg interviewed him, and Bernard resigned on air.  A few weeks later Michael Gove, the Secretary of State for Justice, cancelled the criminal courts charge, and Bernard tried to withdraw his resignation. To cut a long story short, he was not allowed to do so, and was forced to stand down.  He found the disciplinary process “a frustrating experience”:

“A conduct panel, and then a disciplinary panel, and then the lord chief justice and lord chancellor, found that I had ‘failed to act judicially’…But none of the above has explained what acting ‘unjudicially’ means, and it appears not to be defined anywhere. Nor have they explained how I ‘undermined the authority and impartiality of the court’ – the phrase the disciplinary panel used to explain why article 10 [freedom of expression] of the Human Rights Act 1998 did not apply to this situation. Given the lack of clarity and the subjective nature of their conclusions, and especially as I contended that I did not act unjudicially, natural justice and normal judicial procedures and the rules should require that I be given a proper explanation”. 

Bernard has taken his complaint to the judicial appointments and conduct ombudsman and got no fuller explanation. So far he has represented himself, but would be interested in taking his case further, on the basis that his right to freedom of expression has been compromised. So if any lawyers are willing to have an informal conversation about this, let me know.

Equally, for a different point of view on whether judges should speak out on controversial topics, read Rob Allen’s piece on Sir Paul Coleridge’s promotion of the Marriage Foundation in the new collection of essays.