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'Not impermissible' for Lady Hale to speak out on legal aid

16 March 2012

It was “not impermissible” for Lady Hale to speak out against the government’s legal aid cuts, Lord Neuberger has said in a speech on judicial independence.

Lady Hale described the legal aid cuts as “fundamentally misconceived” and a “false economy” in a speech to the Law Centres Federation conference in November.

Lord Neuberger said such comments entered the “territory of government policy, and indeed a particularly controversial aspect of policy”.

Delivering the Holdsworth Club presidential address, the Master of the Rolls said judges could “properly comment publicly on matters which go to the heart of the functioning of the judicial branch of the state”.

He went on: “In some circumstances, it could be said to be their duty to do so. In the past, it would have been easier for them to do so while donning their legislative hats in the House of Lords, or via the Lord Chancellor.

“But those days are now gone. Public comment in respect of the proper administration of justice, an accepted exception to the Kilmuir rules, is more important now that it was when those rules were in place.”

Lord Neuberger said that, like any important right, judicial comment should be exercised “with due care while fully accepting that by entering into the policy debate with government, government can properly answer back, and in such a debate it is always parliament which has the final word”.

He said development of judicial comment on a wide range of legal and constitutional issues, through speeches, lectures and articles, carried “more benefits than drawbacks” but called for “much care, circumspection, rationing and self-denial”.

He laid down six “possible principles” for judges considering whether or what to say.

Among them, were that judges should be “free to comment extra-judicially on a wide range of issues” and in doing so played an “educative role”.

However, he said judges should make “careful consideration” of the impact on judicial independence and on the judiciary generally.

Lord Neuberger said “very exceptional circumstances” would be required before judges expressed views inconsistent with the head of the judiciary, the Lord Chief Justice.

He added that there were “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.”

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Legal Aid Courts & Judiciary