Judicial views on the selection process for senior judges

[Posted on behalf of Kate Malleson]

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee’s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process.

Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This now, therefore looks like an area in which the Committee is likely to recommend reform.

The last surprise from Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he himself would object to such a change and would argue against it. What the Committee will make of that position is hard to know.

Human Rights and Judicial Appointments: The Judges meet the Lords

The Lords Constitution Committee took evidence from Lord Phillips (President of the Supreme Court) and Lord Judge (Lord Chief Justice) yesterday. The topic of the meeting was the Committee’s current inquiry into the judicial appointments process but the discussion touched on some broader themes, including the role of the judiciary and of the European Court of Human Rights in Strasbourg.

For watchers of the judiciary the exchange repays watching – you can watch the whole thing here: http://www.parliamentlive.tv/Main/Player.aspx?meetingId=9199

There’s no transcript yet but one should appear on the Committee website soon: http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/.

The most newsworthy part (it received a good deal of press coverage today) was Lord Judge’s opinion that the UK courts are not necessarily bound by the decisions of the Strasbourg court. Lord Phillips expressed the view that the Human Rights Act meant ultimately that ‘Strasbourg is going to win’. Lord Judge appeared to disagree, and suggested that a debate would eventually need to happen in the UK Supreme Court about what exactly the Human Rights Act means when it says that UK courts are required to take account of Strasbourg decisions. It is at least arguable, he said, that having taken account and given due weight to these decisions, the British courts are not obliged to follow them. One might interpret this as a very polite suggestion that the Supreme Court should change its approach to this issue.

(Whether there is an actual disagreement here is open to interpretation, but there is certainly a live issue. At the moment the UK courts treat Strasbourg precedents as binding and a decision that is directly addressed to the UK certainly binds the UK in international law. And while precedent does not formally bind in international law it is generally very persuasive. As such Lord Phillips’ point seems entirely correct. However, traditionally the Strasbourg court has spoken of affording a ‘margin of appreciation’ to states and it could certainly be argued that – again as a matter of international law – Lord Judge is correct to say that there should be some space for disagreement about what the provisions of the Convention mean between domestic courts and Strasbourg.)

On judicial appointments, both judges agreed that the President of the Supreme Court should not have a role in the selection of his successor and both expressed hostility to the involvement of Parliament in appointments. Lord Judge expressed hostility to the idea of a ‘beauty parade’. However, they were open to alternatives, such as the involvement of the Lord Chancellor throughout the process of selection of senior judges (rather than just at the end, as at present) or the involvement of an MP as part of the selection committee. Both judges were at pains to point out that the role of the UK Supreme Court is, unlike some of its peer Courts in other countries, not political and that different considerations therefore apply to selecting judges for it.

Judges and the Media

The Judicial Independence Project recently held its second seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence, Judicial Accountability and the Media’.

Perhaps the most noteworthy part of the discussion was a general acceptance by seminar participants that judges are influenced by the media in their judicial behaviour. The effect is particularly evident in sentencing: sentences have increased significantly in the last 20 years. Opinions differed as to whether this influence is a good thing. Some pointed to the success of media campaigns in overturning injustice, for example in challenging flawed expert evidence in the case of Angela Cannings and Sally Clarke. For others, the media was described as ’emotional, irrational and obsessed with the short term’ and their influence was – or could be – damaging. One example cited was of the change in the law of damages to reflect a ‘compensation culture’ that Government research has shown does not exist.

Participants also expressed concern about the recent use of parliamentary privilege to break court orders and about a more general trend of ambivalence about judicial independence in Parliament. The continuing importance of the sub judice rule was emphasised.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Judicial Independence and the Irish Referendum on Judicial Pay

[This post originally appeared on the UK Constitutional Law Group Blog]

If all goes to plan, this week the wording of a new amendment to the Irish Constitution will be finalised. The amendment is designed to permit reductions to the pay of judges and will be voted on in a referendum on 27th October. The reason for the amendment is well known: the Irish government has no money. In the midst of a general financial crisis, the pay of other state employees has been significantly reduced through levies. Thus far judges have been exempt because of Article 35.5 of the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be reduced during his continuance in office.’ The exemption of judges from a general pay cut was never going to be politically palatable and so a halfway house solution was arrived at two years ago. A scheme was set up whereby judges could voluntarily forego a portion of their salary in line with the cuts to salaries of other public servants. Uptake of this scheme was, not surprisingly, quite slow although by January of this year a significant majority (125 out of 147 judges http://www.rte.ie/news/2011/0106/judges.html) had signed up to the scheme. When it came into office earlier this year, the new government promised to proceed with a referendum to facilitate formal reductions to judges’ pay. This pledge was popular and the amendment is virtually certain to be approved in the referendum.

The core of the new provision (assuming no further amendments) will be Article 35.5.3:

“Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make reductions to the remuneration of judges.”

If passed, the government proposes to reduce the salary of senior judges by 31%. The judiciary are, by all accounts, unhappy about this proposal and let this be known by a memorandum released in July (much to the annoyance of the Minister for Justice, who insisted that it be removed from the Court Service website – an interesting incident for what it suggests about relations between politicians and judges). The judges’ document, available here: http://www.irishtimes.com/focus/2011/judicialpay/index.pdf, was at pains to point out that the judges did not oppose a pay cut as such, but pointed (amongst other things) to the threat to judicial independence created by the possibility of a reduction to judicial pay.

From the way the new Article 35.5.3 is constructed we can surmise that the drafters are trying to manage a difficult juggling act. They want on the one hand to achieve a legitimate mechanism by which reductions in judicial remuneration may be achieved. On the other hand, they want to avoid the challenge to judicial independence that arises if judges’ remuneration can be used as a means of influencing their decision-making. This is a sensible way to approach the problem. If judicial independence is about anything at its core, it is about protecting judges from the kind of very personal worries – around personal pay and conditions, threats to the person and to family, etc – that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a reduction in public sector pay more generally done ‘in the public interest’. Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that this is what it actually does. The phrase ‘persons belonging to classes of persons whose remuneration is paid out of public money’ seems unnecessarily vague and obtuse. It could mean almost anything. The putative ‘public interest’ test is also too vague. One would hope that most actions taken by the state should be done in the public interest, but the ‘public interest’ concerns that apply to reducing the pay of a civil servant, for example, are not likely to be the same kind of public interest concerns that apply to a judge. Yet as the wording stands it seems that it is the former standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

  1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a purposive interpretation to the meaning of Article 35.5, concluding that a requirement that judges pay income tax was not an attack on judicial independence. It might have been something of a stretch for a court that has become more literalist in recent decades, but it could reasonably be argued that a general reduction in the pay of everyone (not just judges) in emergency conditions is not a reduction to the pay of a judge for the purposes of Article 35.5.
  2. A ‘One-Shot’ amendment. The amendment could simply provide for a once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
  3. Just Word it Better. Why not simply state that judges are not exempt from general pay cuts affecting all public servants but nor may they be specially selected for pay cuts, either individidually or as a group? Why not create an independent means for determining what judicial pay should be?

As it stands, the amendment is a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it. It is a shame that a threat to judicial independence in Ireland, even a minor one, should be created just because of bad drafting.

Ireland gets a new Chief Justice…

… and a new barrier broken. Not only will Mrs. Justice Susan Denham be the first woman to lead the Supreme Court, she will also be Ireland’s first Protestant Chief Justice (that the latter point is less remarkable than the former  illustrates that a lot has changed in Ireland in the last 30 years). The soon-to-be Chief Justice’s appointment does not come as a surprise: she has always been very well-regarded and, having been appointed in 1992, is the longest serving member of the Court. Generally regarded as quietly activist on a Court that is more or less ideologically inscrutable (but in practice conservative in recent years), the appointment may give a more liberal direction to the Irish Supreme Court. Two of the most senior Irish law officers are now female. With the recent change of government Ireland also got its first female Attorney General, Máire Whelan SC.

One of the new Chief Justice’s first tasks will be to smooth relations between the government and the judiciary which have been ruffled by a proposed referendum to facilitate the reduction of judicial pay, due to take place in the autumn.

(PS: I am open to correction on this, but I believe Mrs. Justice Denham may also have broken through a somewhat more difficult glass ceiling by being the first Chief Justice to graduate from Trinity College Dublin and not University College Dublin, from whence the vast majority of her predecessors and current colleagues have graduated. There’s hope for us all…).

Judicial Appointments in the UK and the US (Part I)

[Posted on behalf of Graham Gee]

The HL Constitution Committee is currently looking at The Judicial Appointments Process. Two questions stood out in the call for evidence: question 9 (on whether there are lessons to be drawn from other jurisdictions) and 21 (on whether there is a case for parliamentary hearings for senior judicial posts). These questions are related insofar as debates in the UK about parliamentary scrutiny of senior judicial appointments tend to be conducted in the shadow of confirmation hearings for the US Supreme Court. Reference is usually made to the US hearings to bolster the case against parliamentary scrutiny of judicial appointments. For the lesson that most commentators in the UK draw is that confirmation hearings have led to the ‘politicization’ of appointments to the US Supreme Court. It was thus pleasing to see Professor Alan Paterson offer a qualified defence of the US experience during his evidence before the Committee last week. Following Professor Paterson’s lead, and drawing on written evidence I’ve submitted to the Committee, I use this post to debunk three ‘myths’ about hearings for the US Supreme Court. (In a later post, I seek to debunk some common myths about the role of judicial elections for appointments to state judiciaries in the US).

Myth 1: Hearings are the primary source of the politicization of appointments

Hearings are a fairly recent innovation. The first was held in 1939, and hearings only became routine from 1952. Yet, political conflict was an occasional feature of the appointment process before 1939. All told, there have been 29 unsuccessful nominations in the Court’s history, 22 of them long before the very first hearing in 1939.

It is true that some nominations have trigged political conflict. But what is often overlooked is that most nominations have not. To illustrate this, consider how the Senate has actually voted in confirmation proceedings. Since 1969, the Senate has confirmed 15 Justices and 2 Chief Justices by a combined vote of 1,336 to 264. During the same period the Senate has rejected 3 nominations by a vote of 164 to 132 (with a further 2 nominations withdrawn before a vote was taken).

It is also true that the level of opposition to nominees seems to have increased in recent years, at least in terms of the numbers of votes cast by the Senate. However a better explanation for recent episodes of political conflict stems from the newly aggressive nomination strategies adopted by some recent Presidents.

It is well known that the Court has assumed an increasingly prominent role over the last sixty years. It is widely accepted that this is one reason why appointments attract considerable attention—and, from time to time, political controversy. Less appreciated is that as the Court’s influence over constitutional matters has risen, so Presidents have become increasingly aware of their limited capacity to influence constitutional affairs. For example, Presidential attempts to spearhead movements to amend the Constitution have failed and as have attempts to strip federal courts of jurisdiction over contentious social issues such as abortion and school prayers. As a result some Presidents have turned to judicial appointments in an attempt to shape the constitutional agenda by selecting a nominee who falls outside the mainstream of constitutional thought and who might, if appointed, seek to upend the settled precedent of the Supreme Court (e.g. Robert Bork).

In broad terms, it might be said that if presented with a nominee whose judicial ideology falls outside the mainstream of constitutional thought, the Senate is likely to reject the nomination. If presented with a more moderate nominee, the Senate is likely to confirm (provided, that is, that the nominee is suitably qualified and has a record of professional integrity). Insofar as the Senate might refuse to confirm a controversial nominee who might seek to upturn settled precedent, the Senate process—including the hearing—can be said to uphold the independence of the Supreme Court. Hence, whereas confirmation processes are often said to imperil the independence of the judiciary, it might be that sometimes the opposite is in fact nearer the truth. For in the US context, the Senate’s involvement provides a means to protect the Supreme Court from presidential attempts to transform the interpretation and construction of the Constitution.

Myth 2: The Questioning of Nominees is Inappropriate

The hearings have been criticised for encouraging the inappropriate questioning of nominees about their judicial ideology. However, there are two main reasons why the Senate is entitled to question nominees about their judicial ideology. First, a nominee’s judicial ideology would influence how they would vote—if confirmed —on the issues that would come before them, and it is thus appropriate for the Senate to question them on it. Those opposed to questioning a nominee about their judicial ideology must argue either that a nominee’s ideology is unlikely to affect how they decide the cases before them or that even if ideology shapes their decisions, a nominee should not be questioned about it by the Senate. Nether argument is attractive when it applies to members of as powerful an institution as the US Supreme Court. Second, it is plain that the President considers a person’s judicial ideology when deciding whether to nominate them to the Supreme Court and so should the Senate, since otherwise there is too much scope for Presidents to mould the Court in their own image. It is true that Senators have been criticised for asking questions that require a nominee to pledge to decide specific types of cases in a certain way. This is a valid criticism. That said, it is worth remembering that most nominees have repeatedly (and quite properly) refused to answer such questions.

Myth 3: The Questioning of Nominees is Futile

The questioning of nominees about their judicial ideology is sometimes said to be futile. Recent nominees have often provided bland and uncontroversial answers. Thus, the Senators’ questions are said to be futile insofar as they fail to elicit any interesting or novel information. But this neglects the fact that the hearing is only one part of the Senate’s scrutiny of a nominee. Prior to the hearing, the Senate’s Judiciary Committee will already have researched the background, credentials and writings of the nominee. It will have received reports about the nominee from the FBI, the Congressional Research Service and the American Bar Association. Face-to-face meetings will already have been held between the nominee and members of the Senate Judiciary Committee.

The questioning is also said to be futile insofar as the Senate can never be certain that a nominee’s judicial ideology will not change. This is certainly true. However, the fact that there can be no certainty on this front does not render the Senate’s questioning futile. The questioning of a nominee has multiple purposes, only one of which is to elicit information. It also provides a forum for the Senate to discuss issues of national importance—and, in this, to signal the Senate’s concerns to the judiciary and public at large (e.g. the discussions of racism in the nominations of Rehnquist, Haynsworth and Carswell). Hearings also provide an opportunity to ask the nominee about any specific charges which emerge during the confirmation process (e.g. Clarence Thomas).

Concluding Thought

None of this should be taken to deny that here are problems with the process for appointments justices of the US Supreme Court. Nor should it be taken to deny that the confirmation hearings can be messy, partisan and aggressive. Rather, this post should be taken as a reminder that hearings are not the primary source of the politicization of the process. Above all, this post cautions us against making two mistakes all too common in UK discussions of the US process. The first mistake is to focus only on the Senate’s role in confirming the nominee, and to neglect the President’s role in selecting nominee in the first place. Both the initial nomination by the President and the subsequent confirmation by the Senate must always be kept in mind. This first mistake is often compounded by a second mistake, namely focusing only on the Senate hearing. The hearing is only one part in the Senate’s scrutiny of the President’s nominee.

 

Judicial Diversity and the Irony of Appointments Reform

The Constitution Unit Project on The Politics of Judicial Independence recently held a closed seminar for senior professionals in this area (judges, politicians and civil servants, amongst others) on the topic of ‘Judicial Independence, Judicial Accountability and the Separation of Powers’.

One of the most interesting points that arose in the discussion was that there was a general feeling amongst most attendees that the system for appointing judges required reform. In particular, it was felt that the new system for judicial appointments brought in under the Constitutional Reform Act 2005 had had the ironic and unwelcome side-effect of reducing the diversity of appointments to the senior judiciary. Participants attributed this to the fact that the new appointment panels cannot encourage able candidates to apply for fear of being accused of bias. The pre-2005 system, by contrast, permitted good candidates to be sounded out about their interest informally prior to a formal decision being made. As one participant put it, the old system permitted ‘leftfield’ unexpected appointments that often turned out to be very successful. The new system does not allow enough room for manoeuvre in this regard. Some participants also expressed enthusiasm for parliamentary involvement in senior judicial appointments, although others expressed doubt that such a process could be meaningful.

The event was run according to the Chatham House Rule, but we have prepared a short anonymised note on the discussion that took place and this note is available here:

Graham Gee: Are Executive-Judicial Relations Strained?

[Posted on behalf of Graham Gee. This post originally appeared on the UK Constitutional Law Group Blog.]

At one level, it seems reasonable to characterise executive-judicial relations as strained. In recent weeks, after all, concerns have been raised by senior judges, or on their behalf, on a range of matters—including (the now withdrawn) Schedule 7 of the Public Bodies Bill that would have given ministers the power to modify, merge or abolish a large number of public bodies, including the Judicial Appointments Commission (see here and here); Part 4 of the Pensions Bill, which provides that ministers may require judges to contribute to the costs of their pensions, whereas at the moment judges only contribute to the costs of benefits for their spouses and dependents (see here); as well as aspects of the finance and administration of the UKSC (see here). At the same time, the PM and Home Secretary have spoken of being ‘appalled’ by the UKSC’s 2010 decision in R(F) on the notification requirements for sexual offenders, with the PM also outspoken on the ECtHR’s 2005 ruling in Hirst v UK (No. 2) on prisoners’ votes. But, at another level, the characterisation of executive-judicial relations as strained risks concealing more than it reveals, and for three main reasons.

First, public lawyers often use shorthand when discussing institutional relationships. For example, we refer to ‘executive-legislative relations’ when discussing Parliament’s powers or the ability of Parliament to hold the Government to account. Often the implication, as Anthony King noted in an article in 1976, is that there is one body called Parliament and another called the Government, with our aim to study the relationship between the two. Yet, as King explained, if we really want to understand the various phenomena subsumed under such a broad heading as ‘executive-legislative relations’, we need to study a number of distinct political relationships (including those between and within different chambers, between Government and Opposition and between and within different political parties). King’s basic point—and, in one sense, it is a very basic point and yet, at the same time, marvellously subtle—is that shorthand such as ‘executive-legislative relations’ conceals multiple, complex relationships, each with its own dynamic. So what then do we mean by ‘executive-judicial relations’? Following King, we can take this as shorthand for distinct but sometimes overlapping relationships. For a start, there is not simply one ‘judiciary’ or one ‘executive’ relevant to UK public lawyers; rather, there are multiple judiciaries and executives in our multi-layered polity. We might speculate that relations appear strained between UK Ministers and the UKSC, and those ministers and the ECtHR. Or similarly we might have speculated that, following Cadder, relations between Scottish Ministers and the UKSC were strained. But, in each case, we ought to offer our speculative assessments whilst reserving judgment about other relationships. The point, here, is that we have to specify which executive and judiciary we have in mind when talking of strained relations.

Second, even then, we would likely have in mind relations between only some part of the executive and some part of the judiciary and only on certain issues. Are relations between the Lord Chancellor and the UKSC strained? On the one hand, the Lord Chancellor gave short shrift to the concerns raised by Lord Phillips about the funding of the UKSC and the position of its Chief Executive (see here). As Joshua Rozenberg put it, Lord Phillips ‘learned the hard way’ that a judge ‘who takes on the government in the court of public opinion is bound to end up second best’. On the other hand, reports a week later suggested that the Lord Chancellor had sent a ‘furious letter’ to the Home Secretary, copied to the PM, rebuking her (and, indirectly, the PM) for intemperate comments on the UKSC’s decision in R(F). Leave to one side the question of whether Theresa May’s comments were in fact intemperate, or whether this was simply the sort of ‘no-holds-barred constitutional politics’ that Danny Nicol suggests that we should expect under the HRA. Leave also to one side the question of how ministers ought to react, particularly on the floor of the House, where they are genuinely appalled by some judicial decision. The point, here, is that different parts of the executive have different relations with different parts of the judiciary, with clashes between ministers and judges only ever one part of the story. What is more, the same minister can have differing relations with the same part of the judiciary on different issues.

Third, strained relationships between ministers and judges are sometimes as much about some aspect of ‘executive-legislative relations’ as ‘executive-judicial relations’. Consider, for example, the timing of Theresa May’s ministerial statement on R(F) in mid-February. This statement was made 10 months after the original decision, but less than a week after the House of Commons’ debated the blanket ban on voting by prisoners, where MPs backed a motion stating inter alia that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’. Had the Home Office long been planning to respond to the s4 declaration in R(F) in mid-February? Was someone in government pushing for the statement to be made sooner than planned in order to intensify debates about the HRA, the ECHR and a British Bill of Rights? Was the timing of the statement a sop to Conservative backbenchers riled by other aspects of the Coalition Government’s constitutional agenda, coming as it did on the same day that the Parliamentary Voting System and Constituencies Act 2011 received Royal Assent? None of this should be read as to dismiss the importance of ministerial criticism of this or that judicial decision or political debate about issues such as prisoners’ voters or the post-sentence monitoring of sexual offenders. As King noted in his article, the views of Government backbenchers matter because they are seldom speaking for themselves. Their views on knotty question such as the proper role of courts are likely to be held by some, and perhaps many, inside the Government, as well as parts of the public at large. The point is simply that, at times, it may not be best to construe apparent clashes between ministers and judges solely in terms of ‘executive-judicial relations’, but to see them as related to those larger, complex relationships that we conflate under the shorthand of ‘executive-legislative relations’.

JI in Ireland: The Case of the Minister, the Billionaire and the Judge

The final report of the Moriarty Tribunal, investigating political corruption, in Ireland last week has led to some trenchant criticism of the presiding judge (Mr. Justice Michael Moriarty). Perhaps unsurprisingly, this criticism emanates primarily from billionaire businessman Denis O’Brien and former minister Michael Lowry, whom the judge effectively accused of corruption in the award of a mobile phone licence to a consortium associated with Mr. O’Brien.

Mr. O’Brien has taken a particularly robust approach to his criticism of Mr. Justice Moriarty. He has set up an independent and official-looking website (www.moriartytribunal.com) which aims to ‘expose the inner workings’ of the Tribunal and refute the claims made in its final report and which should not be confused with the Tribunal’s actual official website (www.moriarty-tribunal.ie). He has also taken to the airwaves, making sweeping statements in TV and radio interviews (for example this one on state broadcaster RTE) about Mr. Justice Moriarty’s competence and independence, and suggesting more broadly that the judiciary in general had closed ranks around the Tribunal despite being aware of its ‘flaws’

The new justice minister, Alan Shatter, has in turn criticised Mr. O’Brien’s statements as an unacceptable attack on the judiciary. And Carol Coulter, writing in The Irish Times on Saturday, suggests that Mr. O’Brien could be prosecuted for contempt of court for his remarks.

The extent to which judges should be protected from criticism is a difficult issue. Mr. Shatter was arguably entirely correct to respond as he did to Mr. O’Brien’s rather wild allegations (interestingly taking on a role that the Lord Chancellor would exercise in Britain). However, given the countervailing concerns we should have for freedom of expression, I’m not convinced that prosecution would be appropriate.

Open justice to the box, urges Neuberger

“Lord Neuberger is probably the first member of the senior judiciary to weave together the many strands of justice in the internet age, and has produced a formidable, progressive and, crucially, practical manifesto for open justice in the 21st century.” 

So pronounces Guardian’s Law in an  almost gushing verdict on the Master of the Rolls’ lecture to the Judicial Studies Board last week.   

The eyecatcher  of  Neuberger’s speech is  the televising of court proceedings. But his concept of more open justice ranges much more widely,  over the perceived gap between Justice or the Law (not quite  a solecism ) and  how to avoid writing “ vanity” judgments and embrace instead “ crisp , short,” drafting.   He even discusses the  bete noire of  super-injunctions.  Goodness, he’s so accommodating that he seems like an intelligent layman at times; hardly a vested interest in sight. While his concept of Open Justice is hardly new, (implying institutional resistance perhaps?) his restatement of it is timely and comes across as requiring judges and lawyers to be clearer and more accessible. His embrace of new technology although tentative, shows he recognises the validity of pressure for greater judicial accountability.

  The path to televising the courts has been trodden before as the BBC report explains. A pilot in the Court of Appeal in 2004 was never shown publicly. The subsequent consultation ended predictably, with a fairly even division of opinion among a small number of respondents ( just over 200) and a look ahead to another consultation that never happened.  Not a lost cause exactly, but a project that was never gripped.

Neuberger has now given a boost to the cause – or will have done, if more than this blog,  the Guardian and  the BBC pick it up.  On admitting  the cameras ,  he comes near to saying, why not? And he supports tweeting in court ( cf MPs in the Commons chamber ).  While he is doubtful about televising criminal trials (a pity, despite the problem of some witnesses ) his doubts do not extend to criminal appeals.

The protocols for televising court proceedings would be complex and as Lord Phillips has pointed out expensive, at least by the quite modest standards of the Supreme Court budget.

Editorial control would be likely to remain vested in the courts. But on what basis might cases  be selected and who in real time would be responsible for editing?  If televising were to be any more than a visual record, commentary would  be essential, in a form perhaps similar to law reports which have all but disappeared from the press.  

While Neuberger’s examples of press distortions of cases are telling, you might nonetheless feel his cautious hopes for countering those distortions are naïve. After all, the televising of Parliament has done little for public confidence in MPs . Nevertheless in the digital age, I would assert his is a very proper aspiration. At the very least, televising would greatly widen access to full judgments and arguments which as far as I know remains notoriously difficult for lay persons.  At best, televising whether by narrowcasting  on the internet or in a special digital TV channel (the two platforms will shortly converge anyway), could act as a sharp spur to greater clarity  and public understanding.

Of these matters, let us hear more.