A welcome development has been BAILII’s new collection of judicial speeches, as Paul Magrath explains… Continue reading
Speeches and lectures are a good way of enabling judges to explain their role, and to increase public understanding of what they do, without in any way compromising their independence. They provide a perfect opportunity for the judicial mind to consider general themes or matters of principle, unconstrained by the scope of a particular lis or point in dispute between litigants. In that sense, they offer a complementary source of judicial wisdom, alongside that of reported judgments.
Until now, the problem for anyone wishing to research what may or may not have been discussed in a judicial speech or lecture has been the absence of a central database of such content. Thanks to BAILII, that problem has been solved. To add to their already extensive collection of British, Irish and European case law and legislation and other free legal materials, BAILII have now added a new collection entitled United Kingdom Judiciary Speeches.
Since I had a hand in helping set this up, I’d like to explain some of the background to this development, before exploring in more detail what the new collection will contain.
The changing role of BAILII
Most people know BAILII – the British and Irish Legal Information Institute – as the main source of free case law in our own jurisdiction and several neighbouring or interconnected jurisdictions. It also publishes legislation (as enacted). These are the principal objects for which it was established around the time of the millennium, in accordance with the aims of the Free Access to Law Movement (FALM).
But from its inception BAILII has also published other legal materials, such as Law Commission papers, commentary, and academic materials.
An example is its OpenLaw project, which collects together leading cases from the past and makes these freely available to support legal education. The cases are organised under different legal topics according to lists drawn up by members of the legal academic community, and those lists are currently being updated to include new or newly relevant old cases. ICLR is proud to support the scheme by providing free access to selected leading authorities.
Another project currently under consideration involves providing access to free legal commentary, something that has been successfully developed by CanLII, BAILII’s sister organisation in Canada, via its CanLII Connect feature.
Why judicial speeches?
Judicial speeches are another form of expert legal commentary. Many judges will have written or contributed to textbooks and other commentary during their years of legal practice, and some continue to do so while on the bench. Many have an expertise in particular areas of the law, dating back to their practice or academic careers. But in addition to that expertise, they can add the invaluable experience of practical problem-solving in live cases. That puts judges in a unique position in providing commentary and gives their opinions a particular value.
A speech from a senior judge will often form the keynote address at a conference or to mark some special occasion. BAILII itself has an annual lecture in memory of its judicial founding father, Sir Henry Brooke, who as Brooke LJ did so much to promote the use of IT in the courts and the digitisation of judgments. ICLR has also sponsored a series of annual lectures. Most members of the Supreme Court give lectures, but some of them are in so much demand you wonder how they find the time. The most recently published volume of the Supreme Court Yearbook (for 2018-2019) reports that members of the Supreme Court gave 30 speeches that year, of which just over half (16) were given by its President, Lady Hale. Her predecessor Lord Neuberger was also a prolific giver of speeches and lectures, on a range of subjects including law reporting (see No Judgment, No Justice, the first Sir Henry Brooke lecture, and Reflections on the ICLR Top Fifteen Cases: A talk to commemorate the ICLR’s 150th Anniversary).
He also has some interesting comments to make on the subject of judicial speeches, and other forms of public engagement, in one of my favourite judicial examples of the genre, “Where Angels Fear to Tread” (Holdsworth Club 2012 Presidential Address, 2 March 2012). While urging caution in public engagement, he acknowledges that judges are no longer bound by the strict Doctrine of Judicial Reticence imposed by Lord Kilmuir LC, who said in 1955:
“So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism.”
We have come a long way since then, and in an age when the gutter press can get away with calling three High Court judges “enemies of the people” without a murmur of objection from Lord Kilmuir’s then successor (it was Liz Truss LC that year), it behoves the judiciary to engage with and make their own case to the public. (At the time Lord Neuberger gave the speech, he wondered what Lord Kilmuir and his trappist brethren would have thought of Lord Justice Stanley Burnton, appearing as an amateur food critic in a recent episode of Masterchef, in which he had served judgment on the merits of a mango and passion fruit crème brulee.)
As well as exposing the judiciary to the risk of adverse media coverage, speeches and lectures can also provoke or fuel intellectual controversy. A practising lawyer or academic can speak freely enough about what they really think about the law or how it should change; but once on the bench, they should be careful not to suggest either that they regard the law which they are bound to apply as wrong, or that they might be tempted to bend that law, under the guise of adapting it to a new situation. That said, law reform is a fairly popular subject for judicial speechmaking, along with human rights, law and morality, the domestic courts’ relationship with Strasbourg or Luxembourg jurisprudence, the independence of the judiciary, recruitment and diversity, and the relationship between the law and the press.
It is unlikely that any of these, when delivered, will quite match the expectations of the American Supreme Court Justice Antonin Scalia, of whom Lord Neuberger commented:
“Scalia is a judge whose lectures are without doubt a must see. As one commentator put it, ‘Scalia is the most likely to offer the jurisprudential equivalent of smashing a guitar on stage’.”
Exciting as that may sound in terms of delivery, Lord Neuberger urged caution as to the content of lectures. Judges must take care, when speaking in public, not to deal with any topic on which they might face a conflict of interest or which might give rise to a perception of bias in dealing with a future case. As Lord Neuberger put it, “a judge must be careful about making brave out-of-court pronouncements on issues which he may later be called on to decide judicially.”
Moreover, speeches necessarily involve making a public appearance and this in itself needs to be considered carefully. The latest edition of the Guide to Judicial Conduct (March 2020) makes clear that “the responsibility for deciding whether or not a particular activity or course of conduct is appropriate rests with each individual judge”. It notes, however, that:
“Where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including a set of chambers or firm of solicitors), group or cause or to a lack of even handedness. Care should also be taken therefore, about the place at which and the occasion on which a judge speaks.”
Opportunities for giving speeches tend to be more plentiful at a senior level, to judges in leadership or managerial roles. Supreme Court Justices, especially the President of the Supreme Court, will constantly be asked to speak, and this helps explain why there are so many speeches by Lord Neuberger and Lady Hale, along with other members of that court on its website. Their former colleague Lord Sumption has achieved a different sort of fame since retiring from the Bench, as a sometimes caustic public commentator on the interface between law and politics. He is perhaps the closest we might get to the Scalia type guitar-smashing crowd pleaser.
The Lord Chief Justice, Master of the Rolls and other leadership judges are also frequent speech givers, as the collection of speeches on the Judiciary website (from which much of BAILII’s collection was drawn) demonstrates. High Court judges, circuit judges and other members of the judiciary may not be prevented or discouraged from giving speeches and lectures, but they are perhaps less likely to be publicised by the Judicial Press Office. That is a shame, and it is to be hoped that BAILII’s new collection will not only encourage judges who have given speeches to send them in for publication (BAILII is, in a sense, their ‘blog’), but will even encourage public engagement, by way of speeches and lectures, by more of the judiciary in the knowledge that their efforts will be more widely appreciated for being publicly accessible.