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| LS Lowry - Street in Snow - 1935 |
Once upon a time, the Lord Chancellor was a very authoritative figure - (some might say autocratic) - sitting at the apex of the judiciary. Viscount Kilmuir was Lord Chancellor from 1954 to 1962. In 1955, in a letter to the Director General of the BBC, Kilmuir said that "as a general rule it is undesirable for members of the judiciary to broadcast on the wireless or to appear on television." He did not mention making public speeches but, no doubt, the same edict applied. There was to be no interaction with the media without His Lordship's permission.
At the time, the BBC had asked for a serving judge to participate in a radio programme about notable judges of the past. Kilmuir discussed the matter with the Lord Chief Justice of the day (Lord Goddard) and with other senior judges and decided that the it was important that judges remained "insulated from the controversies of the day." "So long as a judge keeps
silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism". It would "be inappropriate for the judiciary to be associated with any series of talks or anything which can be fairly interpreted as entertainment."
This edict was abandoned in 1987 by Lord MacKay who was of the view that it was incompatible with judicial independence - see Lord Woolf speech in 2003. In modern times, judges frequently make speeches and, at times, touch upon issues which are not only important but are also controversial. Lady Hale has just done this with a speech to the Law Centres Federation Annual Conference in which she stated that the government's legal aid cuts were "fundamentally misconceived." The cuts are a "false economy" and will have a "disproportionate impact upon the poorest and most vulnerable in society." Lady Hale said that it was not the judge's role to attack government policy but it was the proper role of the judges to warn the government of the consequences of the particular choices they make in pursuit of their policies.
Clearly, in some quarters, Lady Hale would be cheered to the rafters. Not everyone is so sure however. For example, barrister Carl Gardner writing on his Head of Legal blog refers to the Guide to Judicial Conduct and argues that the speech was "injudicious." Lady Hale' speech may be read here.
The other interesting development is the sudden and unexplained announcement by Kenneth Clarke regarding postponement of the planned implementation of the legal aid cuts - (assuming they are enacted into law since they are currently before the House of Lords). See Law Society Gazette - 1st December - "Kenneth Clarke postpones legal aid reforms and tendering." That such a major decision is merely announced without appropriate explanation is worrying. Perhaps the days of the authoritative Lord Chancellor - (some might think "autocratic") - are not over after all.
A Friday look at the blogs:
The UK Human Rights blog looked at the case of Hervey v DPP [2011] EWHC Crim B1 - "Would Judges like to be told to eff off in court? ... What the police swearing judgment really says." In a nutshell, the prosecution presented no evidence to the magistrates in support of a key element of the offence (Public Order Act 1986 s5). No evidence: no conviction possible. The writer of the post is Karwan Eskerie who is a pupil at 1 Crown Office Row. It is good to see such new talent emerging. UK Human Rights also has items on the Justice and Security Green Paper which I feel I have covered almost ad nauseam on this blog. (It is incredibly important stuff which gets at the heart of justice in the UK but it is far from being the most "sexy" topic).
CharonQC's blog has been looking at a variety of topics recently, his latest being whether solicitors are superfluous intermediaries (as some appear to think); the Jeremy Clarkson ill-advised comment about strikers and the bleak future faced by law graduates. He also has a good "Postcard from the Staterooms" which begins: "Dear Reader - Lord Chancellor and Secretary of State for Justice, Ken Clarke QC MP, one of the ‘big beasts’ in the Tory party, has been in politics for a long time – a former Chancellor of The Exchequer – and (until recently?) regarded as one of the more liberal and informed members of the current government ..."
Carl Gardner, Head of Legal blog, has looked, in addition to Lady Hale's speech, at Iran being in clear breach of international law; whether the government really is on the brink of success in Strasbourg and also at a speech by Attorney General Dominic Grieve QC on contempt of court.
Defence Brief claims to have found the next Prime Minister. He also posts on Taking Offences into Consideration; Legal Aid rules offering a modern equivalent of Schrodinger's Cat and a letter to Vince Cable about cuts to legal aid.
The Marilyn Stowe blog is an excellent blog about family law and related matters and is looking at the question of using arbitration as an alternative method of dealing with private family law matters. This post is well worth reading given the government's plans to remove legal aid from most private family law cases - "Family Law Arbitration: a new dawn for ADR?"
The Justice of the Peace blog has a hard-hitting post "Acquit the Innocent and convict the guilty // An Ideal or a Problem?"
Family Lore also looks at legal aid in a post "Legal aid reforms postponed: Venal and Grabbit statement" and another post is the story of personal tragedies which, sadly, sometimes arise in legal practice (as in life generally). By the way - Family Lore tells us that the best law firm domain name is "EverArguedWithAWoman.com"
On that note, it's time for dinner with "She who must be obeyed"as Horace Rumpole used to say. Looking forward to Sunday when the final episode of the present series of the excellent Garrow's Law is screened. I posted about Garrow earlier this week - "Let them hate as long as they fear."
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