Top judge speaks! Are the judiciary becoming too outspoken?

8 December 2011 by Adam Wagner

Top Judge yesterday

A lot of headlines begin with “Top judge…” at the moment. Top Judge has variously attacked MPs who reveal injunctions, expressed fears over cameras in court, warned legal aid in family cases may disappear, protested over legal aid reforms, urged murder law reforms and said Britain can ignore Europe on human rights (he didn’t, but that’s another story).

Aside from lazy sub-editors (one of whom was me), what is causing this proliferation of Top Judges? It may be that senior judges are speaking out more, even on controversial topics which could create problems for them in the future.

Or perhaps Top Judge has always been outspoken, but fewer people were listening. In the internet age judges’ pronouncements are more quickly and widely reported. Speeches are often published instantly (sometimes, even before being made) on websites such as judiciary.gov.uk. Previously obscure Parliamentary committee hearings are broadcast live on the internet. The increased profile of the still-new Supreme Court adds to this dynamic.

A third factor is the personalities at the top of the judiciary. At present, the four most senior judges are public facing and media savvy, and waste no opportunity to communicate to the public through speeches, hearings and even judgments.

Currently, the most prolific Top Judge is, appropriately, the Lord Chief Justice Lord Judge. Most of the headlines mentioned above refer to the Top Judge Judge’s annual press conference. He began by answering Joshua Rozenberg’s question on legal aid reforms by restating the standard judicial proviso:

This is a matter of high political dispute and I had therefore better be reticent and not exercise my power, if I have it, to speak.

Lord Judge stayed within this limit, but also provided interesting comments on many of the most important legal issues of the day: human rights reform, disclosure in criminal trials, cameras in court (he agrees with the Ministry of Justice that Court of Appeal hearings and sentencing remarks, but not full criminal trials, should be broadcast), and whether MPs should use Parliamentary privilege to breach court orders.

But the Lord Chief Justice has not always been so cautious. In his recent speech on press regulation, he began by saying:

It is not customary for judges to speak publicly about great issues of the moment, at any rate if there may be the slightest political tinge to the discussion. Nevertheless the topic I have decided to address at this meeting is the press…

Lord Judge’s colleagues are also increasingly vocal. Lord Neuberger, the current Mater of the Rolls and head of the Court of Appeal, is another Top Judge who approaches his public role with enthusiasm. He regularly delivers thoughtful speeches, most recently on law reform, law in time of economic crisis and the internet,  and 21st century open justice, the latter of which I raved about. Neuberger is an early favourite to replace Lord Phillips when he retires as the head of the Supreme Court next year, and we can expect an even higher profile if he does.

Lord Phillips is himself a prolific Top Judge . He is less vocal than his senior colleagues, but has not been shy to express his views in a series of internet-streamed Parliamentary committee hearings, most notoriously to the House of Lords Constitution Committee. He and Lord Judge were reported by the Times front page headline to have differing views on the vexed topic how much European Court of Human Rights should influence UK judges. As I posted, the real story was more nuanced, but whilst it may have been of little legal note, the incident did highlight how keenly judicial comments are now monitored by the press.

The fourth Top Judge is Lord Justice Wall. As the head of the Family Division, he has regularly uses speeches to express his strong views on family justice reform. Perhaps more interestingly, he has also uses published judgments to speak directly to the public, notably warning about contempt of court rules in the case of Elizabeth Watson and Victoria Haigh. Under his watch, the family courts have been publishing more judgments and there is a clear focus on opening up the sometimes controversial courts to the public.

And the Top Judge phenomenon has found its way to continental Europe too, with Sir Nicolas Bratza, the new head of the European Court of Human Rights using a recent article to lambast “xenophobic” UK politicians and journalists for their treatment of the court.

Does it matter?

Does it matter that Top Judge is speaking and being listened to more? There is one clear downside. If judges speak about politically or legally sensitive topics, they risk having to withdraw from cases where those same topics are at issue for fear of being seen to approach the issue with a closed mind. Jonathan Sumption, a Supreme Court appointee who is yet to take up his post, may have already counted himself out of cases involving high constitutional principles with his recent speech on human rights law.

Similarly, legal blogger Carl Gardner questioned Lady Hale’s recent speech on legal aid reform, arguing that criticisms of the reforms may have breached judicial standards. As well as potentially removing Lady Hale from any of the inevitable legal challenges to the reforms, her comments may also raise questions about how we appoint judges:

Lady Hale’s apparent nostalgia for the old days seems to me dangerous: if judges take publicly political stands, calls will increase for them to be subject to a public confirmation process such as happens in America.

Alex Novarese of Legal Week made a similar point in a Legal Week editorial, but also argued that the media may eventually stop listening:

… the problem may rather depressingly sort itself out. As judges have grown more eager to speak out on issues of the day, the media has become less willing to listen. There are now only two journalists working in newspapers who meaningfully specialise in maintaining a contact base among the senior judiciary…

My view is that the rise of the public-facing judiciary is on balance a good thing. Replacing the House of Lords appeal committee with a Supreme Court has, at least from the public perspective, raised the profile of judges. The Human Rights Act has also meant that judges regularly rule on topics that used to be the preserve of Parliament. These factors have moved the UK further towards a separation of powers system, where the judiciary acts as a check and balance to Parliament and the Executive.

For a separation of powers system to work, judges must play an important role in public conversation, and this may mean venturing beyond the cosy but obscure surroundings of legal rulings. This is especially important as a corrective with journalists regularly getting the law wrong and politicians blaming the judiciary for unpopular decisions. But, whilst a vocal judiciary is good for democracy, Top Judges must, in the words of Lord Judge, be reticent in exercising their growing power.

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Related posts

• Bratza bites back
• Lord Justice Wall lays down law on family court privacy
• Lady Hale on access to justice, legal aid and staying at The Ritz
• The power of unelected judges – Part 1 of 2