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We Never Needed to Define the Convention of Non-Political Speech by Judges—Just to Police It. Comments on Patrick O’Brien, ‘Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009’ (2016) 79(5) MLR 786–812.

A convention of sorts, barring judges entering into partisan politics, does exist. In addition, circumspect judicial engagement with politics outside the courtroom is compatible with the function of the judiciary.

Sophie Turenne

In a recent essay in this journal, Patrick O’Brien examines the contributions of the Law Lords when they spoke on the floor of the House of Lords in debates (1876–2009). His research includes the contributions of those retired Law Lords who remained in the House when life peerages were introduced in the 1950s, but the focus is on the activities of those who simultaneously remained on the appellate committee when it was created in 1941. His conclusions are that there might never have been a convention that the Law Lords should refrain from engaging in party-political controversy during debates, that it is mistaken to think that they were more active in the debating chamber before 1941 than after it, and that besides personal temperament, the most striking correlation with activist Law Lords is with those who tended towards markedly conservative politics. O’ Brien refrains from claiming too much for these ideas, presumably because the matter is primarily of historical interest (appointees to the Supreme Court are not able to speak in the House under the Constitutional Reform Act 2005, s 137). The nearest parallel today would probably be an invitation to a Justice of the Supreme Court or a Lord Justice of Appeal in the Ordinary to appear before a Select Committee of Parliament.

O’Brien’s conclusions may be right, but more data may be needed to reach a firm conclusion on all points.[1] If O’Brien’s analysis is correct, however, then the senior judiciary and its critics who rely upon a convention of judicial reserve must articulate more clearly the reasons behind that convention, and explain why the convention has arguably been breached just as much in recent times as in the present. They will have to make plain, without resort to history, exactly why judges should speak with circumspection outside the courtroom, not just in parliament but arguably on other public occasions too.

It seems to me, however, that a convention of sorts does exist. It can, after all, be very beneficial (as O’Brien acknowledges, at page 811) for senior judges to discuss in public some matters which have political implications. Let us consider this, and then the claim relating to activity before and after the Second World War.

 

Was There a Strongly Defined Convention that the Law Lords Should Refrain from Partisan Politics in the House of Lords?

O’Brien himself is unsure, and there are indeed reasons to suppose that there might not have been. Any such convention would need to be founded in the ‘politics convention’ whose practice is scrutinised by O’Brien, or the Kilmuir Rules, or the strong view of Lord Bingham that serving judges are barred from participating ‘in matters where there is a strong element of party political controversy’. Those rules or practice statement are open-ended, unsurprisingly so. There is no satisfactory way of saying when a matter is ‘political’, just as there is no easy way of trying to do the converse, i.e., determining when a matter is purely legal, in the sense of being ‘lawyer’s law’ except to say that this is an issue which does not excite non-lawyers. One can say much the same about the difficulties of determining when a matter is one of party political controversy. That, presumably, explains the divergence of opinion, noted in the study (at page 811), about whether Lord Scarman was right to call for the UK to incorporate the European Convention on Human Rights back in the 1970s.

Based on the judicial peers’ contributions referred to in the article, the purpose that any such convention would serve is also unclear. If it was intended to protect the Law Lords against allegations of bias should the subject matter arise in litigation before them, then it should have extended to voting patterns as well as speeches: Lord Hoffman and Lord Scott recused themselves from Jackson on account of having merely voted against the Hunting Act 2004. If it was to reassure the public about judicial neutrality, then one would have expected the Lord Chancellor to have policed it—but, as O’Brien observes (at page 808), he was in the worst position to warn his colleagues about the separation of law from politics, and that may well have explained why some Law Lords also chose not to restrain themselves either. More generally, it is difficult to sustain a clear correlation between the judicial peers’ contributions and their legal decisions, even with the benefit of historical hindsight[2] and so one might imagine that a convention would only arise in reaction to some a landmark event. But none is identified, notwithstanding the warnings given to (and ignored by) Lord Carson in 1921 (at page 795).

For all of that, there are reasons to prefer the view that some convention of due restraint did exist. The Law Lords were created by the Appellate Jurisdiction Act 1876 ‘for the purpose of aiding the House of Lords in the hearing and determination of appeals’ and a convention quickly emerged whereby lay peers no longer contributed to judicial decisions. It would be surprising if the Law Lords were the only ones expected to be active in both sets of business, and their predominant tendency not to participate in debates seems to confirm this.

The problems lay in defining the scope of the convention (as O’Brien acknowledges, lay peers wanted to hear from the Law Lords on some matters, at pages 808–11) in that there was no figure to ensure compliance in cases where the spirit of the convention was clearly broken. But in the same way that a criminal offence still exists even when it is breached, so too with this convention (an analogy accepted by O’Brien, at page 803). One might add that a criminal offence may have force even though its parameters are far from clear, and this may be so of conventions too.

 

Can We Define a Similar Convention Today in respect of Extra-Judicial Comments?

Today, too, we are no closer to articulating exactly what subjects are off-limits to judges speaking in extra-judicial capacities. But there is a consensus that some convention exists and, I suggest, the convention has constitutional value too in protecting judicial impartiality. There will naturally be a degree of disagreement between judges, parliament and the executive as to the scope of that prohibition, and the scope and application of that principle will vary through time. The semantic variations themselves—whether the prohibition relates to mere ‘public policy issues’ or to ‘partisan politics’, or to any issue that may trigger ‘partisan political controversy’ simply reflect, we suggest, the indeterminacy of the constitutional justification itself.

We seek to get around the problems of definition by having a system of ex ante authorisation. Now that the Lord Chancellor allows the Lord Chief Justice this authority, the rule is that ‘if a [serving] judge is asked to appear before a select committee, the request will be administered by the Private Office of the Lord Chief Justice’ (the 2012 ‘Guidance to Judges on Appearances before Select Committees’). In other words, each occasion is considered on a case by case basis. It doesn’t mean that a convention did not operate on the Law Lords in parliament. Rather it shows that such a convention has now crystallised in (but cannot be reduced to) the 2012 guidance and that it can properly be given effect (albeit still outside the supervision of the courts themselves).

That such a convention is valuable hardly needs to be said. It is a show of triumph that not one of the eleven Justices in the Brexit case Miller was asked to recuse him or herself. Although the issue before the Court was narrow, circumscribed to whether the Government could use its prerogative powers to withdraw from the European Union, nonetheless in the popular imagination it was thought that the Supreme Court decision might halt Brexit altogether. But each Justice who had made public comments on one aspect or other of European Union law had said nothing to indicate his or her own view as to the wisdom of membership of the European Union, as opposed to pointing out the arguable legal implications and obstacles to withdrawing from the European Union. As Lord Mance firmly suggests, ‘judicial decisions may have political implications, but that does not make them political. They are decided on legal argument and a legal basis’. Nicklinson is another good example where all nine Justices rose to that task.

Judges rightly concern themselves with the impact that a judge’s extra-judicial speech might have on the dignity and impartiality of the judicial office. It is assumed that judicial involvement in the political process will detract from judges their impartial and independent status and lead to diminished respect for the judiciary—the respect for the judicial institution comes from its lack of political engagement. Sir Alan Moses has said that ‘[i]t is the mask, the form through which the judges deliver their decisions . . . The judge is least himself when he talks in his own person. Give him a mask and he will tell you the truth’.[3] There is a great degree of truth in this. Within the precinct of the court, legal rules and judicial processes place severe constraints upon the judicial freedom to bring moral, social and political perspectives into legal reasoning, beyond a narrow consideration of the precise text of the law.

However, it is equally valuable that the convention is in some way limited, no matter how hard it is to define the boundaries, because today too there are legitimate subjects of debate in which judges can involve themselves out of court. They can, and should, give factual information about court delays and be free to state when they are caused by lack of legal funding or the availability of interpreters, etc. They can, and should, correct clear distortions of their judgements made by the press.

Even comments on subjects which may have political tones might be tolerable, provided that the judge makes it clear that he or she speaks only for him or herself, and that the remarks do not suggest wider political engagement or activity from the judge. Concerns about judicial bias can be taken too far if we continue to associate too closely, as many judges do, judicial impartiality with political neutrality. Everyone has their own make-up and personal beliefs. I’ve argued elsewhere that even a secretly biased judge would still be a biased judge, and it might be for the best that a litigant would have a proper opportunity to air concerns which may have been raised by extra-judicial comments.[4]

Besides, not only is judicial neutrality impossible to achieve, it is not desirable. In the words of Lord Nicholls in National Westminster v Spectrum Plus (at [32]), ‘judges have been charged with the responsibility of keeping [the] law abreast of current social conditions and expectations’: for that purpose, we need our judges to be aware of the values bearing on a judicial decision, and we need them to be open and responsive to society to enable fair judgments and the equal treatment of all.

What matters—or at least, what should matter—is whether the judge who expresses an opinion out of court nonetheless does so in a manner which shows both an ability and willingness to discard it in a relevant case, and to decide the case on the basis of legal argument. At the very least, he or she must be trusted to recognise a potential conflict and to recuse him or herself if appropriate. The search for impartiality, distinct from judicial neutrality (or the lack thereof), informs the constitutional obligation of avoiding party-political controversy in extra-judicial speech.

 

Were the Law Lords More Active in the Debating Chamber before 1941 than after It?

We can only hope for fuller research of the archives to settle the matter. Certainly O’Brien casts some doubt on this easy assumption, though he acknowledges that simply counting the contributions made at various times can be misleading. As time progressed and up to 2009, there was much more business in the House of Lords in which judicial peers had the opportunity to be involved, and more serving judicial peers too, since the number of Law Lords had been increased to twelve.

In any event the reasons to believe that their Lordships would have been more active in the earlier days remain strong.

For a start, there are the reasons acknowledged by O’Brien. Before 1941 judicial business even took place in the same chamber as the main debates; it simply preceded legislative business. So it was possible for Law Lords to attend both (they wouldn’t even have to leave the room), whereas after 1941 their judicial business would often coincide with debates in the legislative chamber. Also, much of the House was composed of hereditary peers with no obvious qualifications at all. It stands to reason that the views of the Law Lords would have been more keenly sought than in the days when all peers were appointed by merit. Indeed, perhaps in these earlier days some Law Lords may have felt it their duty to contribute more widely.

It must be relevant to consider that in these earlier years, careers in politics and law were generally much more closely entwined. One could well switch between the two careers, and many did. Over the years, however, the proportion of MPs–lawyers in parliament has decreased and in more recent years the Law Lords were more likely to have had careers in law from the outset. It would be surprising if this did not affect their willingness to engage in wider debate, outside ‘purely’ legal matters.

 

Conclusions

I look forward very much to reading more from O’Brien and others on the habits of the Law Lords as they were. Conclusions from the data are likely to be always open to debate. But while there are many senior lawyers who bemoan the Constitutional Reform Act 2005, perhaps especially with the succession of non-legally qualified Lord Chancellors that have resulted from it, it has not all been for the worse. The removal of temptation for Law Lords to make wrong judgment calls in Parliament has gone, and the Judicial Office which was set up after the Constitutional Reform Act surely acts as a better way of consistently guiding judges about what might be appropriate comments out of court. While O’Brien studies the extent of judicial speech within the House of Lords, I suggest that what truly matters is the purpose of each judicial intervention, what it tells us about the judicial function at the time and its responsiveness to society. On my account, a degree of judicial engagement with politics outside the courtroom is not merely a curious historical fact; it is compatible with the function of the judiciary provided that judges do speak with reticence and moderation, for fear of damaging the dignity and independence of the judicial office by their words.

References

[1] O’Brien does not claim to have read all the contributions. A study of the contributions over the years outside the court by the Lord Chief Justice would be another way of considering the separation by judges of law from politics over the years.
[2] For this work, a small sample of debates was selected for qualitative analysis, made up of debates during one month from each year 1880–2010 at ten year intervals. The month selected in each year was chosen using a random number generator. The author’s qualitative analysis thus depends on randomly selecting certain months; a different selection of debates could produce different results.
[3] Sir A Moses, ‘The Mask and the Judge’ (2008) 12 Southern Cross University Law Review 1, 15, 23.
[4] S. Shetreet and S. Turenne, Judges on Trial. The Independence and Accountability of the English Judiciary (CUP, 2013), 361–4, 416–17.
Published 22.06.17
Response by Sophie Turenne
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