Moral courage

Chief justice stands up for judicial independence

Advocates and judges must demonstrate moral courage, the lady chief justice of England and Wales told the Bar Council’s annual conference at the weekend. Baroness Carr of Walton-on-the-Hill said that members of the bar and the judiciary must set aside their own views, beliefs and prejudices in order to secure justice:

The judge must do this to deliver justice according to law. The barrister does it so that their client, no matter who they are or what they are alleged to have done, has the same opportunity as all other members of society to secure such justice.

And barristers had a duty to keep judges on trial while they were sitting in judgment. That was not always easy, she told them:

Judges, at times, can be trying. We are human, after all. And just like you we are all too often working under intense pressure. But if a judge oversteps the mark, that is when vigilance and courage come to the fore.

It takes courage to challenge a judge in such circumstances. You not only should, but your duty to your client and to the rule of law requires it. The judiciary as an institution requires it. Confidence in the judiciary depends on judges not only doing justice but being seen to do so.

Baroness Carr addresses barristers at the weekend

I was not able to attend the conference on Saturday but I was pleased to receive a copy of Carr’s remarks. That, in itself, was significant. Carr began her speech by saying this:

I am glad to be able to be standing here in the pre-election period. It is a visible confirmation of judicial independence.

The significance of this passage may not have been immediately obvious. According to guidance from the Cabinet Office, the pre-election period — previously known as “purdah” and now called simply the election period — began just after midnight on 25 May. This was a few hours after parliament was prorogued but nearly a week before it was dissolved on 30 May. No closing date is given for the election period but presumably it ends when the polling stations shut on 4 July.

What is expected of government officials during this period?

The basic principle for civil servants is not to undertake any activity that could call into question their political impartiality or that could give rise to criticism that public resources are being used for party political purposes. This principle applies to all staff working in departments.

Departmental and non-departmental public body activity should not be seen to compete with the election campaign for public attention. The principles and conventions set out in this guidance also apply to public bodies.

It is also a requirement of the ministerial code that ministers must not use government resources for party political purposes and must uphold the political impartiality of the civil service.

It’s clear that this does not apply to the judiciary. But what’s not clear from the Cabinet Office guidance is how it affects court staff. Many of them work for HM Courts and Tribunals Service, an executive agency sponsored by the Ministry of Justice.

I encountered this uncertainty myself in the period between prorogation and dissolution. Lady Rose of Colmworth, a justice of the Supreme Court, gave a public lecture in Jerusalem on 29 May. With her agreement, I published an audio recording of her lecture the next day.

Afterwards, I received a number of messages from the lecture’s organisers. They had apparently been asked by the Supreme Court communications office to avoid all publicity for the speech until after the election. Even though the speech had already been delivered at the Hebrew University and live-streamed to anyone who cared to watch it, there was said to be some sort of embargo on it.

Readers will gather that I ignored these requests. It’s fair to say that nobody from the Supreme Court contacted me direct. The 16,000 people on my mailing list were not expected to pretend they had never seen the summary of the lecture I had sent them. And I was not asked to delete the audio from my website or from the other platforms on which readers will be able to access future podcasts. But I notice that Rose’s speech has not yet appeared on the Supreme Court’s own website, even though it is — as you would expect — non-political and entirely judicious.

There is an important lesson here. It’s not for the Cabinet Office to tell judges what to do. The judges tell the Cabinet Office what to do.

In the High Court last Thursday, Mr Justice Chamberlain heard an application brought on behalf of senior civil servants who are challenging Cabinet Office guidance on what officials should do if the European Court of Human Rights grants interim measures suspending the removal of asylum seekers to Rwanda. Even though this is an issue that divides the Conservatives and Labour, there was no suggestion that Chamberlain should not sit in public. If he finds that the guidance is unlawful, there would be nothing to stop him delivering a judgment to that effect ahead of the election. Indeed, if the issue was not now seen as entirely academic he might even be under a public duty to do so.

If the polls are to be believed, we are returning to a position we last saw in 1997. There will be a strong Labour government with a weak and divided parliamentary opposition. While there is no reason to suppose that a government headed by a KC will seek to break the law, the judges will continue to have an important role in ensuring that ministers do not exceed their powers. That’s when they — and the lawyers — will need to display moral courage of the highest order.

Update 10 June: The text of Rose’s lecture is now on the Supreme Court website. I’m not sure when it first appeared.