By convention, judges very rarely give interviews and never make political comment. Even in our all pervasive media age, they still follow the dictum of Lord Justice MacKinnon, who wrote in 1940: “He is the best judge whose name is known to the fewest readers of the Daily Mail.” In November 2016, the Daily Mail challenged this dictum.
The notorious “Enemies of the People” headline was positioned on its front page above large photographs of the three judges who sat in the Article 50 appeal hearing – the then lord chief justice, Lord Thomas; the master of the rolls, Sir Terence Etherton; and Lord Justice Sales.
In response, sections of the media felt duty-bound to leap to their defence – but only on the relative margins. And still the judges did not talk. Instead, much wider publicity was given to the Mail’s toxic headline, and its ad hominem attacks against the judges, as it became regrettably reinforced by further media coverage. Perhaps inevitably, this carried much more weight in the public consciousness. Almost no other group of British workers can be criticised in this way without being able to respond: whether through trade unions or professional associations, their collective voice is recognised in the media. Not so our judges.
It therefore came as no surprise when an official survey, reported by the Times several months later, revealed an existential crisis of judicial morale: among all ranks of the judiciary only two per cent felt valued by the government, and only three per cent valued by the media. Meanwhile, 47 per cent of High Court judges were reported to be considering leaving the bench early over the next five years. That most journalists and commentators take our judges for granted should be self-evident; that some wilfully choose to undermine public confidence in our judiciary without any thought as to the consequences is equally apparent.
Recently, however, judges have been speaking out more often – not in self-defence, rather in defence of the legal system which they uphold. Lady Hale, the first female president of the UK’s highest court, the Supreme Court, gave a speech at UCL’s law faculty last May in which she said that the challenges facing the UK justice system “are too numerous to mention, let alone address”. In particular, she highlighted the cuts to legal aid made by the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which removed more than £350m from the legal aid budget and ended the right to legal representation in cases involving everything from divorce, child custody, clinical negligence and welfare to employment, immigration, housing, debt, benefits and education.
Hale went on to say: “This is a matter for government, and LASPO is under review, but we cannot realistically expect much more than a rearrangement of existing funds. Empirical research could clearly help policymakers understand the real impact and how access to justice could best be improved.” Although she did not say it, the subtext was clear: an effective criminal justice system is a pillar on which the rule of law is built. Underfunding threatens its effectiveness, tarnishing the reputation of the system, and undermining the rule of law. Spending on legal aid fell by 33% in real terms between 2011-12 and 2017-18.
Perhaps emboldened by the response, Lady Hale gave another speech in December to the Isle of Man Law Society which was published on the Supreme Court website in January. She addressed the issue of whether the European Convention on Human Rights should cover economic and social rights. Families, she said, are “fighting for enough to live on and to make ends meet”, adding “The UK government’s austerity policies have undoubtedly made this worse and have posed some uncomfortable problems for the courts.”
Hale is not alone in her criticisms. Other members of the senior judiciary have also spoken out. In a recent speech to judges and lawyers, Mr Justice Bodey, one of the most senior family court judges, criticised the impact of legal aid cuts and said it was “shaming” to preside over cases in which people are forced to represent themselves. More than a third of family cases now involve litigants who are unrepresented on both sides. He told his audience: “I find it shaming that in this country, with its fine record of justice and fairness, that I should be presiding over such cases.”
In a speech last September, Lord Wilson, another Supreme Court judge, accused the government of dismantling the UK’s “precious system of legal aid”. Meanwhile Sir Ernest Ryder, senior president of tribunals in England and Wales, has also criticised the legal aid cuts, describing the justice system as “beset by austerity” and added that the “quality of justice” is under threat.
There is only one problem with judges speaking out in this way and that is the extent of media coverage devoted to what they say. No Daily Mail headlines are given over to the comments made by Hale and her fellow judges. True, the specialist legal media, the Guardian and the Times Law pages do their bit. But such stories tend to be read within a somewhat rarefied echo chamber comprised mostly of lawyers rather than by men or women on the Clapham omnibus.
Those of us who write about law firms and legal practice have a dual responsibility: to make our judges feel valued and to give the widest possible currency to what they have to say on matters of public importance in relation to the administration of justice. The term might be unfashionable, but it is our duty. In too many countries, judges are either corrupt or incompetent. They are pawns of the state, unable or unwilling ever to find against a government through fear or systemic pressure. The independence of our judiciary is sacrosanct. However, this is only part of what makes our judges the envy of the world. The intellectual quality and integrity of judgments handed down by our senior judges is almost without parallel. They work extremely hard to be scrupulously fair in the interests of justice.
Governments, politicians – and even newspaper editors – come and go. But the reputation of justice in our courts is a continuum, built upon the quality and integrity of our judges, both personal and professional. This needs protection and proper funding. We must also continue to attract the best and the brightest to become judges of the future. This can only be guaranteed so long as we respect what our current judges do and say. They are not enemies of the people, but guardians of the people: the attacks upon some US judges by President Trump further underlines the importance of that argument.
We should therefore not only be more openly grateful to our judges, more often, we should also listen carefully when they tell us that our legal system is underfunded and under threat. And we should report it just as much as underfunding of the NHS is discussed. In an age of renewed populism, such a message perhaps needs to be delivered more forcefully, more intelligently and more often by our populist media. The people have a right to know.
Dominic Carman, journalist, writer and legal commentator.