It’s concerning that there are MPs who ask whether judges give reasons for judgments or who assume that the common law is illegitimate activism. Lord Reed was certainly correct to say that we should not be surprised if lay members do not understand the way the legal system works, and he was certainly right not to attack elected politicians, but MPs are actually participating in the legislative process, and it seems extraordinary and problematic to me that questions like that could be asked. Certainly more court outreach to MPs seems crucial, but it does seem like it could be a sticking plaster to an inherent weakness in our legislative system that opens the door to populist movements fuelled by misinformation and disinformation.
Thanks for highlighting this speech Joshua: the full text (which you link to in your report) is definitely worth a read. It's a bit disappointing that the only mention of public observation of the courts is live-screening of the Supreme Court. Live-screening of superior courts is a good thing, of course, and it's important too that we can read judgments which set out the reasons for judicial decisions, but most court hearings are not live-screened and only a tiny minority of judgments are published. There's no substitute for watching judges in courts and tribunals up and down the country listening to submissions and deliberating out loud about how the law applies to the facts of each case. I appreciate that his role means that Lord Reed was speaking largely about the Supreme Court but public access to observe the justice system more broadly is also crucial to the rule of law. The emphasis in his lecture on access for journalists (e.g. to advance copies of judgments) at the expense of the rest of us reflects an outdated divide between traditional and social media that really doesn't work any more. At the Open Justice Court of Protection Project, a small group of members of the public (none of us journalists or lawyers) have been increasing public knowledge about the judiciary and the legal system - in a formerly little-know court! - for five years now. Open justice in the courts is still an uphill struggle and, like Lord Reed, we've produced some helpful suggestions for the judiciary on how to improve transparency (and hence, we suggest, public trust and also legitimate public criticism) of the courts. Check out our blog post: https://openjusticecourtofprotection.org/2024/10/15/fifteen-top-transparency-tips-for-judges/
Many thanks, Joshua, for making available to a wider audience such an important speech. It is of course entirely unsurprising that it wasn't reported by the kinds of newspapers (if one can still call them that) which it criticises, but one would really have hoped for better from the Guardian and the BBC. If only Law in Action was still on R4.
Thanks and, yes, if Law in Action had still been on the air I am sure Lord Reed would have given us an interview on this topic. It's worth pointing out that past episodes are still online, though it's not very easy to find them on BBC Sounds.
Joshua, if I may say so, is right to give this address by Lord Reed an airing. I remember when MUCH younger my concerned reading of Professor J.A.G. (I THINK?) Griffith’s first edition of “The Politics of the Judiciary”, where I believe I DID then detect some force in what he had had to say about -perhaps largely unconscious- bias on the part of the judiciary as a whole towards the thinking and -yes- wishes of the then establishment. The ferocity of the various “voices” of that establishment in attacking him spoke for itself as it then seemed to me.
I also (very modestly) contributed to “Negotiated Justice” by Baldwin and McConville, where MY OWN professional body tried to block EVEN its publication.
I DO believe that we collectively and the judiciary have moved on considerably since then.All the same in terms of assuming NOTHING about the understanding the grasp -or lack of it- of our judicial system by our fellow citizens at all levels and in all nature of occupations and lifestyles we should proceed on the premise that it is ALL still to do. I am no longer staggered by the lack of understanding by -I would say- most Parliamentarians (although there are some with legal qualifications who for their own factional and self seeking reasons choose to misrepresent the position of the judiciary in terms of separation of the powers. That has included (and continues to do so?) those many in former governments in the key post of Justice Secretary or in that Shadow post.
I remember however a young trainee solicitor who enthused over a dinner conversation with “Tom” (yes Bingham) where that remarkable human being had given him no hint of who he was.
I met Lord Chief Justice (Peter) Taylor once when as an honoured invitee he and his wife had “worked the ‘room’ [the Birmingham Law Society’s venerable library] with consummate ease.
I remember an event at the Lord Chancellor’s Advisory Committee on Education and Conduct [ACLEC] where - scared rigid- I had been “volunteered” to speak for the (Chancery Lane) Law Society on the propriety of Solicitors and Counsel engaging AT ALL with the media about their cases. Given the consternation of in particular Lord Taylor about the use of the media “HERE” being infected by its lurid use in the then prominent O.J.Simpson trial the event chaired -as ever diffidently by Lord B- the concerns were very real. I doubt I could have caused TOO much adverse reaction when advocating a more nuanced approach since for a fascinating final year of ACLEC I was a little later appointed to it.
My point in all this? There is SO much to do; teaching about our constitution and judicial systems in vague generalities at schools and in later education in no way hacks it. How can we expect our fellow citizens to empathise with and support a worthwhile judicial system when they are provided (unless in train of securing a legal qualification) with nothing more -in truth- than a vague snapshot?
This is as I hope I have demonstrated above is nothing really to do with the legitimate concerns of for example Lords Taylor and Bingham who both had made it their business to be “of the people” in the good sense of that overworked phrase.
What in my firm view must be confronted-as with jury trial- is the proposition that there is in some way NO POINT in any of this since “the poor dears” can scarcely be expected to understand such sophisticated concepts. That way lies societal division and opens up still further uninformed attacks and-worse- calculated misinformation. I applaud Lord Reed and other judicial figures for their serious forays into greater openness.
Perhaps the rule of law requires a **belief** in the rule of law for law itself to operate. This "belief" might be akin to the implied terms of contracts of employment. It would be hard to imagine a lawyer arguing against a belief in the rule of law. If we do accept that there is such a thing as belief in the rule of law (and I think there is) then this belief should be capable of protection under the Equality Act 2010, since it passes the Grainger Test of what a belief must be to be a belief in law. I can sincerely **believe** that the moon is made of cheese, but this is not a protected belief in law since it is obvious nonsense (everyone knows it's made of ice-cream). Therefore, all wrongdoing is a discrimination against a person's foundational belief in the rule of law. We might similarly suppose that a person can sincerely believe in John Rawls' Theory of Justice, or in evidence-based medicine. These also should be capable of being protected beliefs. This may need to be clarified by way of declaratory relief. We can apply logic and seek to establish the essential quality of law itself - ie what there has to be for law to be law. It is the non-identity of opposites. The law stands in distinction to violations of the law; they cannot be the same. If so proven and it is accepted that a belief in the rule of law is indeed protected, this could have significant implications for law enforcement, especially in the now-dawning age of near-instant pattern-spotting AI. Or is there a flaw in this reasoning.
It’s concerning that there are MPs who ask whether judges give reasons for judgments or who assume that the common law is illegitimate activism. Lord Reed was certainly correct to say that we should not be surprised if lay members do not understand the way the legal system works, and he was certainly right not to attack elected politicians, but MPs are actually participating in the legislative process, and it seems extraordinary and problematic to me that questions like that could be asked. Certainly more court outreach to MPs seems crucial, but it does seem like it could be a sticking plaster to an inherent weakness in our legislative system that opens the door to populist movements fuelled by misinformation and disinformation.
Thanks for highlighting this speech Joshua: the full text (which you link to in your report) is definitely worth a read. It's a bit disappointing that the only mention of public observation of the courts is live-screening of the Supreme Court. Live-screening of superior courts is a good thing, of course, and it's important too that we can read judgments which set out the reasons for judicial decisions, but most court hearings are not live-screened and only a tiny minority of judgments are published. There's no substitute for watching judges in courts and tribunals up and down the country listening to submissions and deliberating out loud about how the law applies to the facts of each case. I appreciate that his role means that Lord Reed was speaking largely about the Supreme Court but public access to observe the justice system more broadly is also crucial to the rule of law. The emphasis in his lecture on access for journalists (e.g. to advance copies of judgments) at the expense of the rest of us reflects an outdated divide between traditional and social media that really doesn't work any more. At the Open Justice Court of Protection Project, a small group of members of the public (none of us journalists or lawyers) have been increasing public knowledge about the judiciary and the legal system - in a formerly little-know court! - for five years now. Open justice in the courts is still an uphill struggle and, like Lord Reed, we've produced some helpful suggestions for the judiciary on how to improve transparency (and hence, we suggest, public trust and also legitimate public criticism) of the courts. Check out our blog post: https://openjusticecourtofprotection.org/2024/10/15/fifteen-top-transparency-tips-for-judges/
Julian
I very much agree with you.
Many thanks, Joshua, for making available to a wider audience such an important speech. It is of course entirely unsurprising that it wasn't reported by the kinds of newspapers (if one can still call them that) which it criticises, but one would really have hoped for better from the Guardian and the BBC. If only Law in Action was still on R4.
Thanks and, yes, if Law in Action had still been on the air I am sure Lord Reed would have given us an interview on this topic. It's worth pointing out that past episodes are still online, though it's not very easy to find them on BBC Sounds.
Joshua, if I may say so, is right to give this address by Lord Reed an airing. I remember when MUCH younger my concerned reading of Professor J.A.G. (I THINK?) Griffith’s first edition of “The Politics of the Judiciary”, where I believe I DID then detect some force in what he had had to say about -perhaps largely unconscious- bias on the part of the judiciary as a whole towards the thinking and -yes- wishes of the then establishment. The ferocity of the various “voices” of that establishment in attacking him spoke for itself as it then seemed to me.
I also (very modestly) contributed to “Negotiated Justice” by Baldwin and McConville, where MY OWN professional body tried to block EVEN its publication.
I DO believe that we collectively and the judiciary have moved on considerably since then.All the same in terms of assuming NOTHING about the understanding the grasp -or lack of it- of our judicial system by our fellow citizens at all levels and in all nature of occupations and lifestyles we should proceed on the premise that it is ALL still to do. I am no longer staggered by the lack of understanding by -I would say- most Parliamentarians (although there are some with legal qualifications who for their own factional and self seeking reasons choose to misrepresent the position of the judiciary in terms of separation of the powers. That has included (and continues to do so?) those many in former governments in the key post of Justice Secretary or in that Shadow post.
I remember however a young trainee solicitor who enthused over a dinner conversation with “Tom” (yes Bingham) where that remarkable human being had given him no hint of who he was.
I met Lord Chief Justice (Peter) Taylor once when as an honoured invitee he and his wife had “worked the ‘room’ [the Birmingham Law Society’s venerable library] with consummate ease.
I remember an event at the Lord Chancellor’s Advisory Committee on Education and Conduct [ACLEC] where - scared rigid- I had been “volunteered” to speak for the (Chancery Lane) Law Society on the propriety of Solicitors and Counsel engaging AT ALL with the media about their cases. Given the consternation of in particular Lord Taylor about the use of the media “HERE” being infected by its lurid use in the then prominent O.J.Simpson trial the event chaired -as ever diffidently by Lord B- the concerns were very real. I doubt I could have caused TOO much adverse reaction when advocating a more nuanced approach since for a fascinating final year of ACLEC I was a little later appointed to it.
My point in all this? There is SO much to do; teaching about our constitution and judicial systems in vague generalities at schools and in later education in no way hacks it. How can we expect our fellow citizens to empathise with and support a worthwhile judicial system when they are provided (unless in train of securing a legal qualification) with nothing more -in truth- than a vague snapshot?
This is as I hope I have demonstrated above is nothing really to do with the legitimate concerns of for example Lords Taylor and Bingham who both had made it their business to be “of the people” in the good sense of that overworked phrase.
What in my firm view must be confronted-as with jury trial- is the proposition that there is in some way NO POINT in any of this since “the poor dears” can scarcely be expected to understand such sophisticated concepts. That way lies societal division and opens up still further uninformed attacks and-worse- calculated misinformation. I applaud Lord Reed and other judicial figures for their serious forays into greater openness.
Perhaps the rule of law requires a **belief** in the rule of law for law itself to operate. This "belief" might be akin to the implied terms of contracts of employment. It would be hard to imagine a lawyer arguing against a belief in the rule of law. If we do accept that there is such a thing as belief in the rule of law (and I think there is) then this belief should be capable of protection under the Equality Act 2010, since it passes the Grainger Test of what a belief must be to be a belief in law. I can sincerely **believe** that the moon is made of cheese, but this is not a protected belief in law since it is obvious nonsense (everyone knows it's made of ice-cream). Therefore, all wrongdoing is a discrimination against a person's foundational belief in the rule of law. We might similarly suppose that a person can sincerely believe in John Rawls' Theory of Justice, or in evidence-based medicine. These also should be capable of being protected beliefs. This may need to be clarified by way of declaratory relief. We can apply logic and seek to establish the essential quality of law itself - ie what there has to be for law to be law. It is the non-identity of opposites. The law stands in distinction to violations of the law; they cannot be the same. If so proven and it is accepted that a belief in the rule of law is indeed protected, this could have significant implications for law enforcement, especially in the now-dawning age of near-instant pattern-spotting AI. Or is there a flaw in this reasoning.