Is it time to ungag the judiciary?

Down through the chain of judges, those with mouths know that they should keep them quiet lest they upset anyone publicly, writes John van der Luit-Drummond

The debate over whether to allow the judiciary the freedom to speak out on politically charged issues has been reignited following the publication of a controversial article by an anonymous judge.

Writing on the Mail Online, the self-described 'experienced asylum judge in a major British population centre' said the UK's immigration controls were 'broken' and that the majority of claimants who appear before him are economic migrants, 'pure and simple'. However, despite having no hesitation in dismissing their claims, the judge suggests that no more than one in ten asylum seekers are ever deported.

The article also took aim at the tabloid press' favourite punching bag: article 8 of the European Convention on Human Rights. 'There are those who claim the right to a family life, which is the last resort of the rascal in my opinion,' said the unidentified judge, before going on to list examples of such behaviour. 'I am barred from speaking without the permission of the Home Office, so I must remain anonymous and so must the cases I have dealt with.'

Leaving aside the question of whether the article was written by a real judge, its publication does reopen the debate as to whether judges should be allowed to speak their mind on political matters, especially when it is in the public interest to do so. Outside of their rulings, which, as every lawyer and journalist knows, can be hugely enlightening, convention dictates that sitting judges keep mum about their personal opinions on government policy. However, sometimes opinions just slip out.

Judge Christopher Ball QC's recent slamming of the Crown Prosecution Service for making 'daft' decisions and claims that its charging lawyers 'don't have sufficient brain cells to understand all the dynamics of the criminal trial' should be welcomed as it once again highlights the financial and resource pressures faced by the prosecuting agency. Nevertheless, to 'intervene or to comment while a matter is being hotly debated in parliament' would be wrong, according to a speech given by Lord Justice Beatson last year.

Indeed, a judge's willingness to enter the political realm is often seen as a sign of 'judicial activism'. The High Court's hearing of Labour's recent and bitter internal leadership dispute is a prime example, with UKIP MP Douglas Carswell labelling 'activist judges' as 'intolerable' and describing Mr Justice Hickinbottom as 'rather foolish'. The comments followed a Telegraph editorial which argued that the court had erred and should not interfere with internal party politics. The paper's long-serving leader writer, Philip Johnson, added that parliament's 'subjugation' to the European Court of Justice should not be replaced post Brexit 'with subjugation to our own'.

It's hardly the first time judges have faced censure from Fleet Street columnists. Barely a week goes by without tabloid claims of 'soft on justice' judges endangering the public. Last year, Tory grandee Lord Tebbit attacked the rise of 'judicial imperialism', believing some judges wanted power 'beyond the boundaries set by legislators'. It remains an irony that, as Lord Judge once said, judges are 'easily criticised and cannot answer back'.

In 2007, the then Lord Chief Justice, Lord Phillips, formed a panel of media spokespersons to represent the judiciary. Members of the panel were not intended to comment on individual cases or enter into politically charged debates but to help reporters and the public understand sentencing decisions and enhance confidence in the judiciary and the justice system. With pressures on access to justice mounting, the need for transparency within the court system has arguably never been greater, making the role of the panel increasingly important.

However, in a new book, Breaking Law, retired solicitor and judge Stephen Gold writes: 'The panel is reactive and only to a very limited degree and not proactive. No member will be allowed to rear their head unless the senior judiciary, on advice from the judiciary's communications unit, is satisfied that it is in the interests of the judiciary that they should do so.'

Gold, who was a member of the panel, continues: 'My personal view is that the panel is underused. I have advocated an extension of its remit to inform the public on their legal rights and obligations and to regularly seek to influence public opinion and decision makers. Not a view which has found favour in the right places although I accept that there are respectable arguments against.'

Speaking to Solicitors Journal, one former judge, who also wished to remain anonymous, explains that while the judiciary makes the 'strong representations to government' behind closed doors, it collectively fails to speak out and 'galvanise support from the public'.

'Judges have a fear of upsetting the government by saying anything which may be perceived to be political. They gag themselves and gag other members of the judiciary, although that is not always successful. Lower down the judicial chain those with mouths know that they should keep them quiet and that their bosses will be displeased if they speak out. That is not a good thing. The judiciary is overly nervous about it all.'

Yet, other than the potential danger of appearing on a tabloid's front page, what are the risks judges face when daring to speak their mind? 'You won't necessarily be disciplined, but it will be made clear to you that it is not right what you do,' says our secret judge, 'and it might be felt it would injure one's career prospects.'

Of course, the higher up the judicial totem pole a judge climbs, the more freedom they seem to have, with Lord Neuberger, president of the Supreme Court, highlighted as a prime example. 'He's had quite a lot to say about quite a lot of things, particularly about legal aid, because there is actually nobody to tell him off,' adds our anonymous ex-judge. 'The higher up you go the fewer bosses and the stronger, more vociferous you can be in the expression of your views. However, the general culture is, don't upset anybody publicly.'

Few would advocate a move towards the US system of 'judicial politics' with members of the bench openly sparring with elected parliamentarians over matters of ideology, but perhaps what is needed is a halfway house between the two schools of thought. Or maybe politicians should just take note of how the public is far more trusting of judges than of them. Either way, is it right that the public and legal profession must wait for a judge to retire, or write anonymously, before we know their true feelings about law and policy? Is it time to ungag the judiciary?

John van der Luit-Drummond is deputy editor of Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD