Trust in the courts

Top judge explains how judiciary should act in an age of populism

The United Kingdom’s most senior judge has rejected claims that judges “interfere unwarrantably in the democratic process” and that their decisions are based on applying “values which are not shared by parliament or the general public”.

Lord Reed of Allermuir said that criticism of this sort “fails either to understand, or at least to acknowledge, that judges are doing their best to apply the law, not deciding what the law ought to be as a matter of policy”.

It was not just a section of the press which felt that judges did not understand their constitutional role. As he had learned, that concern was also felt by some members of parliament.

Lord Reed of Allermuir, president of the UK Supreme Court

Newspapers

In a lecture to the Professional Negligence Bar Association on Thursday evening, the president of the UK Supreme Court cited four newspaper articles.

This was the first:

The Telegraph’s allegation was not new, Reed recalled:

In 2006, an editorial in the Daily Express stated: “Britain’s out-of-touch judges are increasingly using the Human Rights Act as a means of asserting their will over our elected representatives”.

In the editorial it had published in February, the Telegraph went on to assert that recent tribunal decisions in immigration and asylum cases had “highlighted the extent to which the values held by this country’s judiciary have diverged from both those held by the general population and those held by the legitimate legislature in parliament”.

That accusation was not new either, Reed observed:

A Daily Mail editorial in 2003 asserted that “Britain’s unaccountable and unelected judges are openly, and with increasing arrogance and perversity, usurping the role of parliament, setting the wishes of the people at nought and pursuing a liberal, politically correct agenda of their own, in their zeal to interpret European legislation”.

And criticism was not confined to the conservative end of the political spectrum. “Following the Supreme Court’s recent decision about the interpretation of the Equality Act 2010,” he noted, “the judges were criticised by some organisations, and on social media, for their supposed bigotry and hatred towards the trans community.”

Shooting the messenger

Criticism of judicial decisions rarely attempted to engage with a court’s reasoning, Reed said. It focused instead on the outcome of a case, praising or blaming the judges accordingly. “The response to an unwelcome decision should be — and is on the part of thoughtful commentators — not to shoot the messenger but to call for reform of the law.”

But criticism of this sort could resonate with the public because, in democracies around the world, there was now disenchantment with established institutions:

In a number of countries, voters have turned to leaders who argue that executive powers cannot be constrained by unelected judges — or, for that matter, elected judges as in some countries — and who are hostile to courts that uphold constitutional principles, protect the rights of minorities and safeguard the separation of powers.

Such leaders depict judicial independence as a self-serving privilege of judges rather than as a guarantee of impartial justice for every citizen. They portray decisions which are adverse to them as politically motivated. They variously impose budgetary sanctions on the courts when they behave independently or seek to influence the courts through political control of the appointments process; or simply secure the removal from office of the senior judiciary and their replacement by judges who are more compliant.

To varying degrees, this type of politics can be seen developing, or to have taken control, in a number of the democracies of Europe, the Americas, Asia, Africa and the Middle East.

Populism

Another factor that risked eroding trust in the institutions was misinformation on social media platforms about lawyers and courts. Taken together, unfair criticism and misinformation were symptomatic of populism — characterised by a belief that the people and the elites were in opposition.

Reed acknowledged that proper weight should be given to the concerns of those who had the most reason to be pessimistic. But, he continued,

populism can undermine the rule of law by diminishing trust in the institutions which uphold the law and undermining support for judicial independence.

Every country needs stable institutions; and an independent judiciary is one of the most important. But the recent history of some other countries has demonstrated that respect for an independent judiciary cannot be taken for granted, even in a long-established democracy.

The Supreme Court president gave no indication of any particular long-established democracy he might have had in mind. But no democracy was immune from populism, he said — even our own.

Article 8

Again, he turned to a recent comment in Telegraph:

In February, one of the paper’s columnists had written:

“I have not myself seen any signs of left-wing fanaticism in the tribunal judiciary,” said Reed drily. But he understood the concerns that had been expressed and hinted that some tribunal judges had not followed stringent tests repeatedly set by the Supreme Court.

In a ruling only a day earlier, his fellow justices had sought to limit the effect of a provision in the European convention on human rights that they understood defence lawyers had been raising in virtually every extradition challenge, “almost as a matter of course”

The Supreme Court said last Wednesday:

Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success.

Two-tier justice

Picking up a phrase used by Robert Jenrick and others — but not referring to the shadow justice secretary by name — Reed said:

In the field of criminal justice, some commentators have criticised what they describe as a two-tier justice system, which is alleged to be biased against what some of them call white Britons.

I do not believe that for a moment, and I am troubled by the tone of some of those criticisms, but they are a reminder of the importance which people rightly attach to equality before the criminal law, and that they do not expect the criminal courts to be an arena for affirmative action.

Maintaining public trust

In the United Kingdom, Reed said, we had not seen the tendency towards autocracy or the attacks on the principle of judicial independence that were current in many other countries. But we could not afford to be complacent. What, then could the judges do to maintain public trust in the courts?

The UK’s senior judge made some initial observations:

1. The media should not be regarded as the enemy of the judiciary, even if some media organisations expressed criticism. Members of the media perform a vital role in protecting the rule of law.

2. Criticism of judicial decisions is to be expected in a democratic society. Above all, it is to be expected in parliament. But if people are to serve as judges, concern and criticism must not descend into personal abuse and the stirring up of violent emotions.

3. Compared with many other people in public life, judges are generally treated with considerable respect by our politicians and media. Most judges have not faced the risks faced by MPs to their safety or their homes.

4. Responsible criticism should neither be dismissed nor ignored. If there are problems, even of perception or communication, it is in the judiciary’s interests that they should be addressed.

Fearlessness and judgment

“While the court has to be fearless in defending our constitutional values,” Reed continued, “it also has to exercise judgement and display a sensitivity towards the other institutions of the state, and towards public opinion, if it is to avoid being perceived as a political actor.”

The Supreme Court needed to deploy judicial statecraft. It had to communicate effectively with politicians, the media and the general public, so as to build a level of trust that could withstand tensions if they arose.

Reed set out in detail ways he and his colleagues were aiming to achieve this:

• We should write our judgments in a measured and neutral style, helping to demonstrate that our rulings are based on the law and not on our personal convictions. We have to explain our reasoning carefully in our judgments and summaries, making it clear that we are applying legal expertise and that our work is not political. Politicians are concerned with what the law ought to be. We are concerned with working out what it is.

• Communication is important to public confidence in the court. We put

  a lot of effort into this, for example by livestreaming our proceedings and the hand-down of our judgments, watched by half-a-million people last year. Our website last year was visited by 1.4 million people. Our communications team also maintain our social media accounts on X, Instagram and LinkedIn, with around 400,000 followers.

• We also put a lot of effort into public legal education. For example, we have established a scheme which gives pupils at schools across the UK the opportunity to take part in a live question-and-answer session with a judge of the Supreme Court from their classroom, via the internet. This scheme has proved to be very successful, enabling the court to make direct contact with young people in a positive way.

• We recognise that the court operates in an intensive media environment in which journalists and bloggers are expected to provide an instant response to our decisions. So members of the Supreme Court’s communications team work with the journalists who cover our work to help them to report it accurately. Where a judgment is likely to attract media interest, they provide the judgment and the press summary to journalists, on a confidential basis, an hour before the judgment is made public. We do not do this in the most sensitive cases, or where prior knowledge of the judgment could be abused. But the confidentiality is enforced by our law of contempt of court and has never been breached.

• The communications team also work with the judges to help them to

  communicate with the public. They help us to ensure, for example, that the language we use in the summaries that are delivered on camera when decisions are announced, excerpts from which may appear on the television news, is understandable by members of the public. They help us to ensure, in cases which will be reported in the media, that there is a short sentence or two in our summary — a soundbite — which can be quoted and which explains the essence of our decision. They also assist me with media interviews, for example by advising me in techniques for answering media questions. This is not a question of spin. It is a commitment to openness.

• It is not the courts’ role to lobby or campaign on government policy. However, we can properly seek to improve understanding of the courts and inform consideration of policy proposals affecting them by sharing relevant factual information, as we have done in response to various consultations on law reform.

• Soon after I became president I instituted more frequent meetings with the lord chancellor and found that I was able to obtain the lord chancellor’s support when necessary, for example when there was a government media briefing which I felt undermined judicial independence. All the lord chancellors I have dealt with have taken seriously their duty to protect judicial independence.

• We have also engaged successfully with the Foreign Office by informing them about our engagements with foreign courts and governments and inviting their cooperation and assistance, for example by providing embassy or consular support. I think they may have been surprised to discover how extensive our contacts and meetings were and that they included meetings with overseas political figures — including

  prime ministers and heads of state as well as judges.

• In relation to government officials, a particularly valuable event was a meeting between the justices of the court and the most senior officials in departments across government, where we learned how things look from each other’s perspectives and talked over the factors that can lead to government decisions and policies being challenged in the courts.

• Even more important than our relationship with government is our relationship with parliament. We put a lot of effort into outreach but politicians are much better at communication with the general public and the judiciary needs to work at making itself better understood by them. If they understand the importance of the rule of law and are willing to defend it, then they can influence public debate.

• The relationship between the law and parliament was until recent times much stronger than it is today. At the House of Commons Speaker’s suggestion, I invited members of the justice select committee to come to the Supreme Court for a visit and a discussion. That was a successful and well-attended event, which went on for an hour longer than had been planned. There have been two more visits since then, which have been equally successful. I also accepted an invitation from the Lord Speaker of the House of Lords to give a lecture there to parliamentarians from both houses, with the aim of promoting greater understanding of the rule of law and its relationship with democracy.

• The Commons Speaker, our chief executive and I made a video which was

  sent to all 335 new MPs. It covered the rule of law and the constitutional role of the court and was part of their parliamentary induction pack. The Speaker invited our chief executive and me to a reception for all new MPs, at which we had a chance to meet them and talk about our relationship with parliament. Every new MP was sent an invitation to visit the court for a tour and a meeting with justices and staff.

Speaking to MPs

Reed explained that engaging with parliamentarians enabled the justices to explain their work without the risk of anyone losing face in public:

One lesson for judges is that there is often less understanding of our work and our role than we had imagined. For example, one MP asked me whether the Supreme Court gives reasons for its decisions, and if so, whether they are made public.

We should not be surprised if a lay person does not know that judges issue judgments and imagines, I presume, that we simply take a vote, rather like a jury. Most people are not taught at school about the justice system but draw their knowledge and opinions about it from the media.

Bearing in mind that Judge John Deed tries cases which are prosecuted by his girlfriend and defended by his former wife, and is constantly resisting attempts by government officials to influence his decisions before he solves the crime himself through his own investigations, it is not surprising if lay people have an inaccurate idea of what judges do.

Another question I have been asked by a parliamentarian revealed an assumption that the law consists only of legislation. Judicial development of the common law was assumed to be constitutionally illegitimate activism. Again, lawyers take the judicial development of the common law for granted; but why should we expect lay people to know anything about it unless we explain it to them?

The same questions came up regularly in meetings with politicians, Reed disclosed:

I am asked about the legitimacy of unelected judges overturning the decisions of a democratically elected government, which gives me an opportunity to explain the difference between the government and parliament — and the duty of the courts to uphold the laws enacted by parliament if they are violated by the government.

I am asked whether a supreme court operating on the American model is not foreign to our constitutional traditions, which gives me an opportunity to explain the differences between the UK and US supreme courts…

It is much better to have the opportunity to engage with politicians who hold these concerns and explain the position to them than have them continue to hold mistaken beliefs about the judiciary.

Distrust

Reed had found distrust of the courts among MPs and peers. That was worrying. But we should not assume that its causes were nothing to do with the courts.

“Cases in which, for example, judges have said that they might disapply an act of parliament which they regarded as contrary to the rule of law, or in which they have interpreted ouster clauses so narrowly as to render them ineffective, have left a legacy,” he said. “The courts’ approach in recent years has been more attentive to the separation of powers; but the more ambitious decisions and dicta of the past have not been forgotten.”

Just as it was desirable for politicians to understand the judiciary, Reed believed, it was desirable for the judiciary to understand politicians. Judges should not cry wolf every time the government proposed amendments to judicial review, sentencing policy or the protection of human rights:

Those who wish, as I do, to defend the crucial role played by the judiciary in our parliamentary democracy need to exercise judgement and encourage a measured debate, rather than responding in a way which encourages the view that the judges are a law unto themselves, deaf to criticism and an obstacle to reform.

“The judiciary and parliament have to maintain the relationship of mutual respect that historically has been one of the great strengths of our constitution,” Reed concluded.

“We need to encourage trust where there may have been distrust, to encourage politicians and judges alike to see the courts and political institutions as having a shared responsibility for the rule of law, and to help politicians and the public to understand that the courts’ independent role in the interpretation and application of the law is legitimate and necessary.”

Comment

This was an important lecture, hitherto unreported, so I hope I shall be forgiven for the length of this summary. At 18 pages, Reed’s speech it is well worth reading on full — and not just because my recent oral evidence to the Lords constitution committee gets a passing mention.

It was delivered to commemorate Lord Taylor of Gosforth, lord chief justice of England and Wales 1992-96, who was the first senior judge to communicate directly to the public through various media appearances. That policy was seen as necessary because public confidence had been damaged by multiple miscarriages of justice. But Taylor’s willingness to engage with the media was not regarded as entirely successful.

Reed is willing to give media interviews — he was one of my first guests on A Lawyer Talks — but his approach is more subtle and therefore likely to be more successful.

Taylor’s successor as chief justice, Lord Bingham of Cornhill, was senior law lord — a post equivalent to the one held by Reed today — from 2000 to 2008.

My interview with Lord Bingham, November 2005 (image: Telegraph)

In 2005 Bingham told me that he had recently rebuffed an attempt by the then home secretary to communicate with senior judges through a “back channel”. It was thought the government had been looking for a steer on what period of detention without charge the law lords might find lawful in terrorist cases.

An approach of that kind would still be regarded as entirely improper. But what Reed has demonstrated is that, without acting unconstitutionally, senior judges can now speak directly to politicians. And that can only be for the good.