Munby and outspoken judges

We expect our judges to be clear, reasonable, and proportionate in their remarks, and not to use the emotionally charged language of newspaper columnists, writes Blair Gibbs

It is doubtful that Sir James Munby, president of the High Court’s Family Division, was surprised by the widespread media coverage of his recent judgment in the case of child X. In what he called an “outrage”, Munby said the state “will have blood on our hands” in the event that a placement was not found for a suicidal teenager and she subsequently killed herself.

The case exposed some of the serious problems in the family justice system and mental health provision, which are complex policy challenges that have yet to be properly analysed, let alone fixed. But the August surprise that Munby unleashed invites another big question – how vocal should our judges be?

Munby has a reputation for being outspoken and anyone who has met him will attest to his forthright style. His ‘President’s View’ bulletins are read eagerly (and nervously) by top officials. But on this occasion Munby’s language was intemperate, and like the cheaper sort of political rhetoric, seemed designed for headline writers.

However tragic and urgent the case may be, it is exceptionally rare for judgments to go out of their way to attract media attention. In the judgment, Munby was careful not to criticise the “committed public servants” who had struggled in vain to find a suitable clinical placement for X. That, he remarked, is “the responsibility of others” – for which he presumably meant “the politicians” – before lamenting “that a judge in 2017… should have to express himself in such terms”.

But does he? To use a rhetorical outburst in one case to make broader political points about the state of public services jeopardises the principle of judicial separation. In saying that there are occasions when doing right “includes speaking truth to power”, and openly condemning the lack of adequate public resources, is to leave the respected realm of judicial neutrality and to enter the political fray. Language and tone matter. Even if the diagnosis is fair, for a judge to use this tactic is, well, pretty ill-judged.

It is not that I disagree with Munby’s conclusion – he rightly highlighted the basic moral obligation of the state to someone in its care. The girl’s desperate circumstances were clearly tragic. And Munby felt exasperated and powerless at the end of a long and difficult case. But we expect our judges to be precise, reasonable, and proportionate in their remarks – not to use the emotionally charged language of newspaper columnists.

So why do it, especially when he has other ways to make his voice heard? Munby has unrivalled access to agency heads and senior officials, right across the public sector. He meets privately with ministers, and attends the Family Justice Board. As with other top judges, in practice they often play a major role in policy and they are to that extent political figures (whether they admit it to themselves or not). After all, judicial independence has never meant that judges are completely isolated from governmental decision-making.

Real change in the justice system happens when policy is shaped by judicial leaders who have to implement it. Munby has done that before himself – around transparency in family proceedings, or the promotion of the impressive problem-solving Family Drug and Alcohol Court. And I recall at least one occasion when an individual ruling of his in a care case led to a swift change in policy.

We need our judges, when necessary, to elevate their concerns to the responsible ministry in a direct but discreet way. Private channels and engagement with officials are how that relationship has traditionally worked, and it means that court practice can directly inform ministerial decisions. Most of Munby’s senior colleagues – who manage to avoid sensationalist language in their judgments – take this approach of private influence and it works. So why depart from convention to speak out so forcefully?

Have we now reached the position that only an intervention like this can force our sclerotic public services to meet their care obligations? Or worse, that only media coverage of an urgent case can get ministerial attention? Do senior judges feel like they aren’t listened to in private anymore? Or has Munby himself just given up on politicians? I would like to think not.

Munby’s outburst had the desired effect – the placement was found in this case – but has it changed policy or led to improvements in the system? Has it enhanced his reputation in government, or weakened it?

If Munby’s exceptional behaviour starts to become the norm, and senior judges are allowed off the reservation like this – especially when they get close to retirement – then our judiciary will be on a collision course with ministers. And as one former special adviser remarked, that would end up with political selection of judges. Without needing his opinion set out in newsprint, I can guess what Sir James would say to that idea.

Blair Gibbs was senior policy adviser to the former Lord Chancellor, Michael Gove MP