The Inner Temple Yearbook 2021–2022
Giving Judges a Voice in Democracies
GIVING JUDGES A VOICE IN DEMOCRACIES From a lecture by Master Cheryl Thomas (UCL Faculty of Laws, Dean of Education at The Inner Temple) delivered via webinar on 16 November 2020.
In this talk on giving judges a voice in democracies, I am going to cover three things. I am going to explore the mechanisms British judges can use to express their views in public, and how these have changed over the years. I will share with you some key findings from my research, which explores judges’ attitudes and experiences, and tries to give them a voice. And I will consider some of the challenges in a democracy of giving judges a voice outside their court judgments.
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Today, in the UK, it is hard to think of a single important social issue that judges are not at some point asked to pass judgment on. In just the last few years, the courts have been asked to determine whether medical treatment should be withheld from terminally ill infants against their parents’ wishes, whether private landlords must check the immigration status of their tenants, who can legally be classified as a mother, whether terminally ill people should be allowed to determine when and how their lives end, and whether the government can do something like trigger article 50 to leave the EU without getting parliament’s consent, or can lawfully prorogue parliament for five weeks. This means that judges are subject to a greater level of public scrutiny, political debate and media attention than ever before. But judges historically have not had a voice outside of their court judgments. That changed in 2014 when the first UK Judicial Attitude Survey was run, exploring the attitudes and experiences of judges in England and Wales, Scotland and Northern Ireland. It is a longitudinal study, which means it is run on a recurring basis. This allows us to understand how judges’ views may be changing over time. I am going to consider the importance of providing this type of voice to judges in a democracy, as well as the challenges that can result when judges are given such a voice. I also want to look how historically we have approached the idea of judges having a public voice. While judges have a voice through their legal judgments, judgments very rarely tell us much about how judges view their relationship with the other branches of government, the public and the media, or what their views are about being a judge and their role in society. Should judges have any other voice in democratic society? Traditionally, in this jurisdiction, the judiciary has relied on others to speak for and speak up for judges. Most prominently, this reliance has been placed on the Lord Chancellor, who has an obligation in law (under the Constitutional Reform Act 2005) to defend the independence of the judiciary. But events in recent years have raised questions about whether the judiciary can always rely on the Lord Chancellor to fulfil this obligation.
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In this context, it is useful to remember how the judicial voice has evolved in England and Wales. During the last century, judges were bound by the so-called Kilmuir Rules about when judges should and should not speak outside the courtroom. These were not formally developed judicial rules of conduct. They were the personal views of the then Lord Chancellor, Lord Kilmuir, who in 1955, said, “The overriding consideration is the importance of keeping the Judiciary in this country insulated from the controversies of the day. So long as the judge keeps silent, his reputation for wisdom and impartiality remains unassailable.” The Kilmuir Rules were publicly abandoned in 1987 by Lord Mackay when he became Lord Chancellor. More recently, in a speech in 2012, when he was Master of the Rolls, Lord Neuberger endorsed a judicial voice when he said that “judges, with their wisdom and experience, should be able to comment extrajudicially on a wide range of issues.”
During the last century, judges were bound by the so-called Kilmuir Rules about when judges should and should not speak outside the courtroom. These were not formally developed judicial rules of conduct. They were the personal views of the then Lord Chancellor, Lord Kilmuir. Judges can and do speak publicly now. One only has to look at the websites of the judiciary of England and Wales and the UK Supreme Court to see the large number of speeches by senior judges in recent years on a range of legal issues. This is permissible because, in principle, there is now no objection to members of the judiciary speaking about legal matters that are not controversial, via lectures, conferences or seminars organised by professional bodies or by academic institutions. Senior judges now also routinely give evidence to parliamentary committees. Judicial participation in select committees is usually confined to commenting on the operation of the courts, the independence of the judiciary or aspects of the administration of justice. This type of judicial voice is permissible because it is thought to contribute to public understanding and confidence in the judiciary. The scope of what judges can say publicly is bound by judicial conduct rules. By long-standing convention, judges cannot comment publicly on the merits of individual cases. They must also refrain from answering public criticism of any judgment. Judges are also not supposed to comment on government policies, proposed legislation or public appointments. There is also a statutory prohibition on judges being involved in any political activity or having ties with any political party.
