Monday, 19 March 2012

Where angels fear to tread: Lord Neuberger talks about judges talking ...

Lord Neuberger MR
The Master of the Rolls, Lord Neuberger of Abbotsbury, has delivered the Presidential Address to the Holdsworth Club.  His speech is entitled - "Where angels fear to tread."  It is interesting that, in this speech, Lord Neuberger chose to caution his judicial colleagues about speaking publicly.  Certainly, in recent times, there has been a noticeable increase in the number of speeches delivered by judges and the most senior judges have appeared, reasonably often, at Parliamentary committees.  Lord Neuberger argued that in extra-judicial speaking vigilance was needed and he made seven key points or "possible principles":

  • Judges should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.

  • Any comment should be made following careful consideration of the impact which it might have on both aspects of judicial independence.
  • A judge should consider the effect on the judiciary generally of any view expressed. The judiciary’s claim to institutional independence depends in part on its institutional reputation and standing. An individual judge may regard a particular statement as justified and be prepared to take any consequent criticism, but the effect on the judiciary generally may render it inappropriate to make the statement.
  • The Constitutional Reform Act 2005 makes it clear that the Lord Chief Justice (LCJ) is head of the English and Welsh judiciary.  It would require very exceptional circumstances before a judge expressed views out of court on a policy or constitutional issue which was inconsistent with the position adopted by the LCJ.
  • A judge should think carefully about how any statement about politically controversial issues, or matters of public policy, might affect, or be affected by, the separation of powers, and comity between the three branches of the State. May it be said, for instanced, that the statement trespasses into forbidden territory, and, if so, can it be justified on the basis that it falls within the appropriate ambit of judicial speaking out? And, if it can, is it expressed in terms suitable for a judge entering the arena in a non-judicial capacity? The same considerations arise when members of the executive or legislature seek comments from serving Judges. Comity and the separation of powers may well call for reticence.
  • Judges should think carefully of their audience, and the impact their comments might have upon it, and upon any wider audience, including the media. Might that impact, or potential impact, call into question their independence, their ability to carry out their fundamental role of doing justice according to law? Could it call into question judicial independence? In particular, if a judge is proposing to discuss a point which may subsequently come to court, care should normally be taken to make it clear that the judicial mind is not closed.
  • Judges should not seek publicity for its own sake, or use their ‘office as a springboard for causes (however worthy).
  • Lord Neuberger's seventh point was to say - "there are rather a lot of judicial speeches being made at the moment. I wonder whether we are not devaluing the coinage, or letting the judicial mask slip. In the light of the fact that I may be characterised as a serial offender, perhaps the less I say about that point, the better."
Lord Neuberger concluded by saying:

"In my view, the development of judicial comment on a wide range of legal and constitutional issues, through speeches, lectures and articles, carries with it more benefits than drawbacks, but it calls for much care, circumspection, rationing, and even self-denial, when it comes to considering whether to speak, what to say and how to say it. It also calls for an understanding by all concerned of the proper boundaries within which comment can properly be made. Those boundaries are now in much starker focus than they were previously, as a consequence of the 2005 Act.

One result of that Act has been to highlight both the nature and importance of the independence of the judiciary and the need for careful thought by all three branches of the State as to how that independence can be properly maintained. At their best, extra-judicial comments in speeches and lectures help to maintain that independence; at their worst they risk undermining it. That is why vigilance is needed."

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2nd December 2011 - Speaking of legal aid ....

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