Trappists v Spinners: shaping the legal discourse

Posted on 11th Mar 2015 in Judges

How should judges communicate with the public? Should they, as that exemplary Conservative Lord Chancellor Lord Kilmuir exhorted them back in the 1950s, remain silent and aloof, preserving their mystique (and that of the law), or should they “descend into the arena” and take up arms with the media on their own turf, seeking to “spin” the law in their own favour and to their own agenda?

This is not a new problem, obviously, otherwise Lord Kilmuir would never have felt the need to voice his objections in the 1950s. Neither would Lord Mackay of Clashfern, occupying the same office in the 1980s, who asserted that

“judges must avoid public statements … which might cast doubt on their complete impartiality. Above all, they should avoid any involvement … in issues which are or might become controversial”.

Nor would Lord Neuberger, giving the Holdsworth Lecture in 2012 (Where Angels Fear to Tread), who took another judge to task for judging a cooking competition, staged in the hallowed precincts of Middle Temple, as part of the BBC Masterchef series.

The problem has, however, acquired a new urgency. There are two main reasons for this.

The first is that we currently have, occupying the hybrid and possibly unconstitutional twin roles of Lord Chancellor and Secretary of State for Justice, a person who is not only not a lawyer (even by education, let alone training or profession) but also appears, by his actions, to have no great sympathy with the aims and philosophy of the law, either at home or abroad.

He certainly cannot fulfil the ancient duty of the Lord Chancellor, as once described by another predecessor, Lord Hailsham, as the “supreme legal adviser” to the cabinet, ready “in cases of grave constitutional questions of importance” to “join with the law officers of the Crown in giving an opinion to the Cabinet on some really difficult legal question”. Given the Janus-like bimentality of his hybrid role, he cannot even be relied upon to represent the legal system and the legal professions against the competitive demands of other government departments, against the depredations of Treasury-mandated budget cuts and against his party’s sometimes ill-informed proposals for rearranging the landscape of Britain’s international legal rights and obligations. Indeed, on all the evidence, Chris Grayling seems to be leading the charge against the very professions he is charged with defending.

The second reason for the current problem is the decline of the role, within the mainstream media, of the specialist legal correspondent. Exceptions proving this rule include Frances Gibb, at The Times, and Joshua Rozenberg, who presents Law in Action for the BBC, and writes in a freelance capacity; also Clive Coleman at the BBC, and Owen Boycott at the Guardian. But the broad fact remains that most national newspapers and broadcasters do not retain a full time specialist legal reporter who can comment on issues of law in a well-informed manner. So when the government of the day issues a press release about a new piece of legislation which is designed primarily to “send a message” or show that “something is being done”, this is lapped up with little scepticism or challenge from the media. Worse still, there is a tendency in some sections of the press to assume that the law is one giant conspiracy, primarily aimed at covering up the incompetence and mismanagement of those in power, with the added benefit of lining all the lawyers’ pockets.

If neither the government, which appoints and directs them, nor the press, which reports their decisions, can understand and interpret what judges are saying, then that task must fall to others.

One solution, which has developed and flourished to a remarkable extent in recent years, is the legal blogging (or “blawging”) community. Writing comments in the form of a blog post, usually advertised and circulated using other social media, particularly Twitter, is something that falls easily to practising lawyers and academics. So if a judge issues a controversial judgment, or the Ministry of Justice announces a new policy, someone in the blogging community will draw attention to it, first of all on Twitter, with a link, and then by way of a blog post. It may not be particularly refined, but it is a very fluid and responsive process. The whole cycle can be complete in a day or two: compare this with the time taken to get approval for the publication of an article in a professional or academic journal.

In combating media bias, or in correcting inaccuracies and explaining things which readers might find puzzling or confusing about a recent decision or judgment, the online legal blogging community is undoubtedly performing a useful service, supporting the administration of justice and, hopefully, reassuring the public.

But are these not functions that the judges themselves could perform?

If Lord Kilmuir had his way, they would certainly not. If Lord Mackay of Clashfern still held sway, it might be very difficult, since any criticism of government policy or new legislation, or any defence by one judge of another judge’s decision in a case which had aroused public interest would, inevitably, fall into the category of “issues which are or might become controversial” and any comment might “cast doubt on their complete impartiality”.

So should judicial angels, in Lord Neuberger’s allusion, fear to tread there?

Another senior and experienced judge, speaking more recently, and with more direct experience of engagement with the media, thinks not. Giving the second annual Tom Bingham lecture at Gray’s Inn on 19 November 2014 (Wearing the Mourning Robes of our Illusions: Justice in a Spin), Sir Alan Moses asked “why cannot the courts do a bit of narrative hi-jacking of their own?”

But there is a problem: “the way the media communicated to the public is not the way judges or lawyers communicate, either to each other or to the public.” Citing academic sources, he refers to the theory that “each social institution develops a particular discourse”.

“The theory underlines what we must all surely instinctively recognise, that the law and media do not talk the same language and that their priorities in most respects are different. But if you translator does not speak the same language as you do it is absurd to complain that they are not passing on your message; you might do better to learn their language.”

While accepting that the Judicial Press Office, started in 2005, and the Supreme Court Press Office, from 2009, have fulfilled the task of supplying the media with basic facts about recent cases, he points out that their summaries are not stories, or even press releases. They might increase knowledge, but the problem is to increase understanding.

“If judges and lawyers fail to engage, others far more skilled are free to choose the battleground, are left alone to draw the lines which set the parameters of discussion.”

To frame, in other words, the discourse. To control the narrative.

“If judges want to communicate to the public, then surely they must learn and be prepared to do so rather than to condemn, in tones I fear that from time to time sound like arachnophobic condescension, what they regard as some black art, redolent of alchemy and witches, the art of spinning. After all, is spinning any more than a rude word for advocacy?”

Sir Alan then cites, as a manifestation of the art of judicial spinning, the oft-quoted opening of Lord Denning’s judgment in Miller v Jackson  [1977] QB 966, slyly riffing on the virtues of village cricket to

“play upon the received ideas of the reader” and to “conjure up a golden age of Englishness and lukewarm beer” and so to “appeal beyond the parties or other lawyers”. This “teaches us how the law should speak to the people”.

He also cites examples of judicial spinning by Lords Hoffmann and Sumption, in each case when giving speeches critical of the European Court of Human Rights in Strasbourg.

“They do not limit themselves in judgment or in lecture to dry rational analysis for fear of any accusation of entry into political controversy.”

There is, says Sir Alan, a “pressing need” for other judges to follow these examples, and to

“deploy their skills in more widespread communication with the public, and not merely in lectures and articles written for each other”.

They should not meet the constant criticism that judges (always in that context described as “unelected”) had overstepped the mark by mere silence.

“Judges do have an obligation to maintain their institutional independence and I suggest they can best achieve that aim by explaining what they are doing and how they seek to uphold the rule of law…. They do have a duty to break down misconceptions, to explain what they are doing.”

Stepping out of their comfort zone of “aloof silence” might be difficult, and they would not be able to speak about their own cases, but “that should not prevent them participating in discussions of pressing concern”.

The solution he proposes is the role of Press Judge, as found in Holland (also Belgium and Croatia), who is trained and skilled in liaising with the media. A number of such judges would be nominated in rotation to learn how to communicate with, and learn from, the media. Among their tasks would be to provide a “counterblast to misinformation and misunderstanding about the law and what judges do”.

The issue cropped up again, about a week after Sir Alan’s speech, when Lord Dyson MR gave the third annual BAILII lecture on 27 November 2014 on the subject of Criticising Judges: Fair Game or Off-Limits?

Lord Dyson gave the example of a judgment he had given on a claim for judicial review of a decision of the then Home Secretary, Michael Howard, which the latter had criticised in a radio interview by commenting adversely on Dyson’s record as a High Court judge.

Howard’s comments (suggesting, without naming him, that Dyson was a judge with form for being overturned on appeal) were later characterised by a senior judge as “a complete breach of the conventions”. In his BAILII lecture Lord Dyson questioned what those “conventions” were and whether they still applied.

The idea that judges should not be criticised in public, if it existed, seems to constitute the other side of the coin that judges (as exhorted by Lord Kilmuir and others of the Trappist tendency) should not enter the arena by speaking out in public. In Lord Dyson’s view the convention of judicial “immunity from public criticism” no longer exists, if it ever did.

“For quite some time now, judges have faced unprecedented scrutiny by politicians and the public, particularly in the media.”

He gives a number of examples, many involving former Home Secretaries of both main political stripes, often concerning human rights cases, and as often as not amplified in the media. I need not rehearse them. The point is that they reinforce Sir Alan Moses’ contention that it is high time for the judges to take control of the discourse, to enter the arena, and get spinning. Dignified silence is not cutting the media mustard.

Lord Dyson appears to accept this.

“Unchecked public criticism of judges undermines confidence in the judiciary. This, in turn, has deleterious consequences for the administration of justice.”

Nevertheless, any judicial response should be subject to three limitations. First, judges should not compromise their impartiality by commenting on individual cases outside court. Second, they should respond to criticism consistently with their professionalism and the dignity of their office. Third, they should be tolerant of criticism, accepting it as inevitable given that every decision would produce losers as well as winners.

Moreover, while personal response was an option, it was fraught with hazard. A much better solution would be “to set up an institutional framework for responding to criticism”, which would involve nominating an individual or organisation to respond on behalf of judges whose decisions had been targeted for criticism. Lord Dyson does not appear to favour Sir Alan Moses’ idea of a Dutch-style Press Judge. Rather, he sees such the function of responding to judicial criticism being performed either by the judicial press office or by the Lord Chief Justice, who is charged under the Constitutional Reform Act 2005 with the role, as head of the judiciary, of official mouthpiece for all judges.

“Judges must expect criticism and, where appropriate, they must offer a robust response. This response should take the form of a well-organised, measured, institutional reply.”

What is clear from the lectures both of Sir Alan Moses and of Lord Dyson is that the Trappist tendency is now no longer an option. Whoever does it, and however they do it, the judiciary must seize control of the discourse, and spin, spin, spin.