Blue sky legal thinking- judges’ ‘extra-judicial’ statments help shape the rules (Image: Shutterstock.com)
This paper examines how the judiciary are present in and contribute to law reform processes through ‘extra-judicial’ statements (i.e., statements made other than in judgments). It focuses on recent debates about open justice, especially in matters of terrorism and security. It aims to explain why judicial contributions are largely absent from these law reform debates, to critically consider the implications of that absence for contemporary debates surrounding proposed reforms to the management of evidence in civil proceedings, and to suggest some avenues for the expression of further, legitimate extra-judicial statements.
A brief explanation of the government’s proposals to introduce ‘Closed Material Proceedings’ (CMPs) into civil proceedings generally will be helpful. The proposals arose from a small number of civil cases involving Guantanamo detainees which the government claimed it could not adequately defend without disclosing sensitive information that would risk damage to national security. The government sought to use CMPs but the Supreme Court held in Al Rawi that the common law did not allow for CMP in civil actions and that legislation would be required if the government wanted that path to be available.
The government published the Justice and Security Green Paper on the issue in October 2011, proposing the use of CMPs in civil proceedings generally and seeking responses by 6 January 2012 as part of the consultation. Of 90 responses received, 84 have been published. They are from a wide range of government agencies, lawyers (including special advocates who currently work within CMP systems), policing agencies, NGOs and others. There is no response from the judiciary in England & Wales.
Judicial views: from judgments to ‘judicial engagement’
In judgments, judicial views are often expressed strongly. The Al Rawi decision contains clear views on security, fair trials and open justice. For instance, Lord Brown, stated that the general adoption of closed procedures would damage ‘the integrity of the judicial process and the reputation of English justice.’ Lord Dyson said that open justice is a fundamental feature of common law trials and of British justice. Lord Kerr saw closed procedures as problematic because they prevented evidence being adequately challenged: ‘To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.’ In extra-judicial statements, judges will usually be more circumspect.
The traditional views and their development
The position has changed over time. Under the ‘Kilmuir rules’ of 1955 judges remained silent on ‘the controversies of the day’ to ensure that the ‘reputation for wisdom and impartiality remain[ed] unassailable.’ The ‘Mackay Rules’ in 1987 removed the general view that judges should stay silent and, in view of the principle of judicial independence, said it was up to each judge to decide for themselves whether and how they wished to take part in public debate. The most recent high watermark is found in March 2012 when the principles under which judges may speak extra-judicially were discussed by one of the most senior judges, the Master of the Rolls, Lord Neuberger. His analysis warrants some attention as it sets out some proposed principles which may shape judicial contributions to public debate for some years to come.
Lord Neuberger argues that judges have not been completely restricted from entering into contemporary debates. Even under the Kilmuir rules, he argues the senior judiciary could ‘comment on matters which affect[ed] the proper administration of justice; that is to say on matters which impinge on the judicial branch of the State; on the court’s ability to fulfil … its constitutional function of doing justice.’
Independence ‘can be compromised through the judiciary being drawn into discussions with the executive and legislature, which, for instance, call on the judiciary to offer legal advice, to comment on the lawfulness or constitutionality of policy or proposed legislation.’ In the legislative context the main intersection has occurred where the judiciary have given evidence to Parliamentary committees. But, as Lord Neuberger explains, the lines are clearly understood by all concerned: ‘Judges cannot, for instance, comment on individual cases. They cannot comment on political matters or matters of public policy, but can rather comment on the practical consequences of certain policy choices. Most pertinently they cannot offer such committees legal advice, just as they cannot provide the executive with legal advice.’
The Constitutional Reform Act 2005 has brought about a more complete separation of powers, especially through the judiciary’s departure from the House of Lords. Lord Neuberger points out that it ‘reduced the avenues by which the Judiciary could enter into public debate, so the remaining avenues are almost inevitably likely to be more travelled.’ However, it does not necessarily lessen the imperative for – or practice of – judicial caution.
Lord Neuberger’s principles
Against that background Lord Neuberger makes his own contribution to the framework within which judicial engagement should occur.
The foundations of the principles lie in ‘mutual respect’, especially between the judiciary and the executive. It is ‘quite inappropriate’ for politicians to criticise judges or their decisions. If they ‘slang each other off in public’ it undermines the constitution, democracy and the rule of law. Mutual respect means ministers and judges ‘must respect the other’s turf and not trespass on it.’ It means judges ‘should not answer back’; it is ‘unseemly and more undermining’ to do so. However, it does not mean that judges should not speak at all. On the contrary, Lord Neuberger says extra-judicial comments have ‘more benefits than drawbacks.’
This is fundamentally right. The individual and collective experience of the judiciary, and their established constitutional role, means they should contribute to public debate about substance and processes of justice. The challenge is how they should do so without compromising the constitutional roles of any branch of the state.
Lord Neuberger attempts to shape the engagement rules by formulating seven principles. I will, with respect, re-formulate these into two principles that might be more easily applied. The first is freedom. It is concerned with scope and limits of when a judge should be able to speak. The second is caution. It is concerned with whether a judge who is legitimately able to speak should choose to do so. In this framework the principles are:
(a) the separation of powers. The judge should pay careful consideration to the importance of judicial independence from both the legislature and the executive. (Neuberger principles two and four.) This is especially important where the proposed comment will address ‘politically controversial issues, or matters of public policy’. The judge should consider the potential affects in light of both the substance of the proposed comment and the terms in which it will be made. A judge should not trespass on the territory of the other branches of the state, and reticence may be preferable at the territorial borders. (Neuberger principle four.)
(b) the individual judicial independence of the judge. Very importantly, a judge must consider whether the specific issue may later arise for determination in court. If it may then the judge should make it very clear that ‘the judicial mind is not closed.’ A judge should also consider the audience and the impact a comment may have. In particular, she or he should consider whether, if disseminated widely (including via the media), it might call into question ‘their ability to carry out their fundamental role of doing justice according to law.’ (Neuberger principles two and five.)
(c) the institutional independence of the judiciary generally. A judge should take account of the reputation and standing of the judiciary in all the circumstances at the time. Those circumstances include considering the frequency, nature and content of comments he or she has made previously, and which other judges have made. A judge should also include consideration of the most appropriate way to express differences of opinion with other judges. A judge should note particularly that the Constitutional Reform Act 2005 makes the Lord Chief Justice the head of the judiciary in England and Wales, and only in exceptional circumstances would be it be appropriate to comment if the view was ‘on a policy or constitutional issue which is inconsistent with [the LCJ’s] position.’ (Neuberger principles three and seven.)
Lord Neuberger’s principles put judicial engagement on firmer ground and a more explicit constitutional footing than in the past.
Judges will still inevitably be cautious of any public engagement with audiences outside the legal profession. Most will remain silent or traditionally cautious in discussion of any contentious issues, and rightly so. At the very senior end of the spectrum, though, while they will choose their battles carefully, Lord Neuberger may have laid the ground for some interesting and well-chosen comments in the next couple of years.
What, then, might this mean for judicial contributions to debates where terrorism and security are concerned?
Judicial views on security, terrorism and the Green Paper
Judicial comments on terrorism laws are rare but not unheard of. Sir Adrian Fulford published a piece after presiding over the trial of men accused of the failed ‘21/7’ bombings in London. Judges in other jurisdictions have also published work in the area. These have been reflective comments. When looking forward, however, the type of forthright views expressed by the Supreme Court in Al Rawi would be less likely to be advanced in extra-judicial comments. Terrorism and security matters are regularly the subject of legislative activity and are almost certain to come before the court in a wide and perhaps not always predictable range of circumstances. In Lord Neuberger’s terminology, they fall squarely into the category of matters which may come before the court, and which are of considerable political controversy.
However, extra-judicial comments are not precluded. Lord Neuberger himself spoke in 2011 about closed proceedings, open justice and security concerns. He described closed proceedings as ‘a clear derogation from the principle of open justice’, but noted that the courts will sometimes be closed and Parliament can legislate to limit open justice:
[O]pen justice is a sacred part of our constitution and our administration of justice. But … in certain, narrowly defined circumstances, the general principle can, indeed must, be set aside.
The extra-judicial technique is to emphasise the importance of the issues without trespassing into the territory best occupied by other branches of the state. By contrast, the judgments in Al Rawi addressed more specifically what the appropriate balance is.
The Justice and Security Green Paper
There is little judicial contribution to the Green Paper debates, or at least little that is visible. The Justice Secretary, Ken Clarke, explained in evidence to the Joint Committee of Human Rights’ Inquiry into the Green Paper what the judicial contribution has been. The evidence is extracted at some length below, with the questions, as it shows the relationship between the three arms of the state and the adherence to traditional principles.
Q 210 Baroness Berridge: … [W]e are dealing with an unusual situation here where we are considering a form of judicial process. Have you had representations from the judiciary in relation to the proposals in the Green Paper, and if so what representations have been made?
Mr Clarke: I have discussed it with the … Lord Chief and the two High Court judges who he asked to consider this matter and discuss it with me. One thing we are absolutely clear about is judges do not advise Ministers on matters of policy. Judges will discuss the broad issues involved, will discuss their experience of these cases, will certainly offer points about procedure, process and how they would best like to do their job, but in the end separation of powers is such that the judges have to reach a point where they retreat and say, ‘That is a matter for Parliament, that is a matter for you Minister, a matter for whether Parliament is going to agree with you; I cannot advise you on that’.
Q 211 Mr Shepherd: And the Law Officer?
Mr Clarke: [We all] have contact with the judiciary, and certainly the Attorney and the Solicitor have regular contact, and I have had meetings on this subject with judges, but you can only take it so far. They want to know what we are contemplating, and I want to know what their view and process are, but we are all very clear that they cannot give advice on policy to the Government of the day.
Q212 Baroness Berridge: I just want to follow that up. I know they can only go so far, but Parliament is involved in this scrutiny process now and when the legislation is put forward. Will Parliament have the opportunity of hearing those representations that the judiciary have made?
Mr Clarke: We are proceeding on the basis that we will publish the responses we have had to the consultation-the written ones, that is-if the consultees agree, and most we have released. I do not think the judges have put in any written evidence, and I can only say that, if the Select Committee want to hear from judges, have a go at the Lord Chief Justice, but I am not sure he will agree to come. He would want all kinds of reassurances about what kinds of questions he will be asked, and no judge will appear here and give an opinion on our Green Paper and the merits of it. …. You would not have the faintest chance of persuading them to do that. Nor do they express their view to me either: ‘Yes, we agree with that; no, we do not agree with that’. …
Q213 Baroness Berridge: Do you appreciate, though, our concern that a limited amount of representation has been given of the judicial view to the Executive and to the Lord Chancellor, which will not then be given to Parliament?
Mr Clarke: I cannot compel judges to respond to a consultation process, nor can I compel judges to appear before Parliament. The judges are right to be highly sensitive to the circumstances in which they might do that, but they do sometimes come and appear before Select Committees. I assure you, I have not debated with any judge the merits or otherwise of any part of this by way of a discussion on policy. I have had general discussions. The judges are quite scrupulous, and they are not going to start getting drawn into whether or not they agree with a Minister on an item of policy. They will not do that even when they are talking in private to a Minister.
The Justice Secretary’s answer to question 212 was slightly erroneous. There is one very brief written judicial response from the Lord Chief Justice of Northern Ireland, submitted by his legal secretary to the Cabinet Office as a Green Paper consultation response. It reads, in full:
The Lord Chief Justice has asked me to indicate that these proposals may have considerable implications for the conduct of inquests in Northern Ireland, but that as the proposals are policy matters and may give rise in any event to the need for judicial decisions the judiciary of Northern Ireland does not intend to respond further.
The letter embodies the reticence and arm’s length of established principles but provides absolutely no substantive indication of what the ‘considerable implications’ might be. It seems perhaps overly cautious but, given the potential for judicial decisions ahead, the caution is understandable.
Is there a problem with such a great absence of judicial input into the Green Paper debates? And is there a way around it?
There is good reason for judicial caution in engaging in extensive extra-judicial debates surrounding the Green Paper. Lord Neuberger’s mutual respect foundations dictate this in all the circumstances. For the most part, there is not a great problem with the minimalism of extra-judicial contributions to the Green Paper debates. While Lord Neuberger is correct that, on the whole, extra-judicial contributions to debate have more benefits than drawbacks, that would probably not be the case here. These are high stakes issues. The separation of powers, the constitutional integrity of the arms of the state and the individual and institutional independence of the judiciary are not to be trifled with. However, there are some distinct concerns and opportunities that arise and which could be addressed even within that framework.
First, the principles of mutual respect which oblige judges to limit their extra-judicial comments arguably place a concomitant obligation on the executive to treat with respect the judicial views that are expressed within judgments. In the Green Paper, there is not a considered treatment of the scope and depth of the views in Al Rawi which are critical of the proposition that closed material proceedings would be appropriate in civil cases. As the consultation response by the Special Advocates observes, these judicial views ‘have not been recognised or addressed in the Green Paper.’
Secondly, there have been discussions between the executive and the judiciary (as the Justice Secretary told the JCHR), but those remain hidden from view. This is highly unsatisfactory. It is not clear what those representations or conversations involved. It seems from the Justice Secretary’s evidence that they went beyond the minimal scope of the letter regarding the Northern Ireland inquests, and moved at least into observations based on experience, though certainly not delving into policy or legality views. As Baroness Berridge points out, the legislation involves a form of judicial process, and parliament will not get to hear the representations that the judiciary have already made. This lack of openness does not enhance the transparency which is appropriate under the separation of powers. While the Parliamentary committee could ask judges to appear, that is also not entirely satisfactory. A better path is to have a formal, written and open expression of views so that both the executive and the legislature – and the public – have access to the representations that have been made by the judiciary.
Thirdly, and following from this, there is good reason to put those contributions on a formal footing. In Lord Neuberger’s framework there is constitutional room to do so. Where policy ‘goes to the heart of the functioning of the judicial branch’ then comment is not merely permissible, but there is arguably a judicial duty to comment. It might well be thought that closed proceedings, access to evidence and evaluation of evidence fall into that category.
The Judges’ Council would be one possible body, though it was said at an expert meeting in 2006 (and it appears members of the judiciary there subscribed to this view) that the Council ‘would be unsuitable for this task as it is undemocratic, hierarchical, and has no mandate to bind the judiciary as a whole.’ However, if a suitable representative body could be identified then it would avoid it falling to individual judges to give evidence to committees, which rightly concerns Lord Neuberger. It might pay attention to international experience as a guide. The Judicial Conference of Australia (JCA), for example, upon invitation made a submission to the parliamentary committee that was inquiring into a Bill concerning mandatory sentencing.
Finally, judicial participation in research provides a fourth avenue for engagement. In the field of terrorism and security, the Law, Terrorism and the Right to Know project has done some substantial work in this area. With the support of the senior judiciary and the assistance of officials in the office of the Lord Chief Justice, a number of judges have participated as interviewees, including several who have presided over terrorism trials and related cases. The interviews are all confidential and no individual will be identified in the publication of any results. The project is ongoing and findings are expected to be published in late 2012.
(c) Dr Lawrence McNamaran. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.