Lady Hale’s injudicious speech

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.