Lady Hale’s injudicious speech

by Carl Gardner on December 2, 2011

Does Lady Hale wish she were still sitting in the House of Lords, rather than the Supreme Court? Earlier this week she gave a striking speech to the Law Centres Federation conference. She opened her remarks by saying

It is not the proper role of any judge to attack Government policy

yet went on to say the government’s plans in the Legal Aid, Sentencing and Punishment of Offenders Bill to cut legal aid by excluding specific areas of law from its scope is

fundamentally misconceived

and showed clear sympathy for critics of the bill in the House of Lords:

the best protectors of the rights of the marginalised and vulnerable in society are not our elected representatives but the unelected mix of the great and good and the superannuated who populate our upper chamber. Where would we be without them?

Here’s the text of her speech, with some comments from me. I wasn’t there – so can’t tell you whether she departed from it at all.

Many lawyers will cheer Lady Hale’s clear opposition to legal aid cuts – for many, this is the least controversial position any lawyer can take. Against the background of widespread opposition to them from the great and good at the Law Society and the Bar Council, and especially given the government’s sudden and unexplained postponement of its planned implementation, Lady Hale’s speech will seem to many an unremarkable contribution to the debate. But I think it’s more than that.

The Guide to Judicial Conduct says, at paragraph 8.2.1, that

many aspects of the administration of justice .. are the subject of necessary and legitimate public consideration and debate in the media, legal literature and at public meetings, seminars and lectures, and appropriate judicial contribution to this consideration and debate can be desirable .. There is no objection to such participation provided the issue directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice.

so it’s okay, in principle, for Lady Hale to express some thoughts about the government’s plans, and perhaps warn of some of the difficulties she foresees for the operation of the courts. But the Guide goes on, at para. 8.2.2:

Care should, however, be taken about the place at which, and the occasion on which, a judge speaks so as not to cause the public to associate the judge with a particular organisation, group or cause. The participation should not be in circumstances which may give rise to a perception of partiality towards the organisation .. , group or cause involved or to a lack of even handedness.

I wonder whether Lady Hale really took the requisite care on this occasion. In spite of her own words she clearly attacked government policy on a matter currently before Parliament, and in circumstances that surely give rise to a perception that she’s partial to the cause of opposing legal aid cuts.

I never thought we needed to create a Supreme Court – but we did, and in doing so more clearly separated our judiciary, whose most exalted members used to sit in the House of Lords and contribute to its debates, from both government and Parliament. Lady Hale’s apparent nostalgia for the old days seems to me dangerous: if judges take publicly political stands, calls will increase for them to be subject to a public confirmation process such as happens in America. The judiciary will be more politicised than ever.

This was an injudicious speech.

{ 3 comments… read them below or add one }

1 Richard Moorhead December 2, 2011 at 18:05

Interesting post Carl. There’s been a few of these speeches, so I am not sure I would single out Lady Hale for criticism. Moses LJ I think (many people seemed to regard the tenor of his speech as extraordinary) and Lord Wilson on or around the same day as Lady Hale? I think Lord Neuberger may have also spoken out. The Civil Justice Council report on litigants in person released I think just after the HC debate on the Bill but before the HL debate was also pretty strong.

That’s not to say the general argument is not a good one. I wondered what would happen if Article 6 (or Witham) type challenges made their way to the SC.

2 Carl Gardner December 2, 2011 at 19:43

I don’t mean to single her out, and perhaps I haven’t followed the detail of what other judges have said as much as I should have, but I’ve not thought any of the speeches I do know about (Sir Nicholas Wall, Lord Walker) have gone quite as far as this. It’s the “fundamentally misconceived” comment, and the remarks about the Lords, that mark this speech out I think.

I’ll have a think about your article 6 point.

3 Jailhouselawyer December 5, 2011 at 12:56

“The judge is a neutral umpire between the competing sides”. “We ought all to be taking courses in how best to preserve judicial neutrality in an adversarial system where one party is represented and the other is not”.

It seems to me that Lady Hale is contradicting herself with these two quotes. In theory, the judge should be neutral. In practice, in prison law cases, all too frequently the judge appears to lean towards the government.

I am getting fed up of the likes of Lord Judge and Lord Neuberger attacking Hirst v UK (No2).

If we are supposed to have a separation of powers, then surely the Judiciary should be allowed to provide a check and balance upon the Executive?

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