Justices out on the stump
Date: 02 December 2011
Authors: Roger Smith
Issue: Vol 161, Issue 7492
Categories: Opinion, Human rights
Lady Hale, the first woman justice on the Supreme Court bench, provided a fascinating glimpse of her career and the issues currently facing the court at a Justice Student Human Rights Network conference at the College of Law. Along with her customary good humour, there were flashes of the steel that you would expect from someone who got a starred first from Cambridge.
Few would cavil at her appointment to the Supreme Court on any test of “merit”. And she is firmly of the view that she should not be alone: the court should better reflect the diversity of its society. She says women on the bench matter because of the experience that they bring. Her empathy has certainly been identified as distinct: “Only Baroness Hale—a woman —had the decency to consider how my family and I feel. It’s as if the other law lords cannot contemplate our feelings at all,” said Mrs Gentle whose case for an inquiry into the Iraq War Baroness Hale had, in fact, just turned down.
Lady Hale is often cited as not only the first woman to rise to the highest judicial office but one of the first academics. An interesting insight from the event was that she was more involved in practice than might appear. She chose Manchester for her first appointment after university specifically because they promised to encourage her to join the Bar and, at its peak, she was splitting her work almost equally between the university and practice.
Lady Hale has a significant student fan base. One attendee e-mailed in to say that it had been like meeting your favourite rock star. Of what male judge, at least after the unfortunate death of Lord Bingham, could that be said?
The backlash builds up
Lady Hale resolutely refused to be drawn at the student event on a recent speech by the soon-to-be Justice Jonathan Sumption. He filled Lincoln’s Inn Old Hall for a pretty conservative—and, let it be said, pretty conventional—statement of the judicial role. He could not be, he mused, “the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections”. Mr Sumption’s paradigm of a judicial review case seemed to be that relating to the Pergau Dam, certainly high profile but hardly routine. Joshua Rozenberg’s magisterial comment was that the new justice was being “naïve”, something probably as well calculated as any to cut the high flier down to size.
Mr Sumption is not alone in hinting at a more conservative approach to judicial jurisdiction. Out on the stump at pretty much the same time were the Lord Chief Justice and Lord Philips in front of the Constitution Committee of the House of Lords. Lord Judge was happy to speculate that the Supreme Court really did not have to slavishly follow decisions of the European Court of Human Rights. Lord Philips said the domestic courts have not been sufficiently flexible:
“Most of the decisions [in the European Court of Human Rights] are not dealing with principles they are dealing with facts and that’s not a precedent for anything.”
These positions all favour a greater margin of appreciation that would encourage judges to give greater deference to the will of Parliament. Lady Hale, in her judgment in the Jackson case, famously speculated, to the contrary, that there might just be circumstances where the courts might just have to overrule Parliament. So, it might be that there will be some backsliding among the court. However, things are not always as they seem. After all, it was always worth reading the paragraph after Lord Bingham’s ringing assertions of Parliamentary sovereignty as a timeless and unchanging element of the British constitution.
That was often, as in the Belmarsh case, where he put the boot in. Mr Sumption may just be boxing clever.
The judge & the press
You can’t move for roundtables on press regulation these days. There were at least three within a week of each other during November: at the University of Westminster, Matrix Chambers and Justice. Others who felt that they had something to say also chipped in from time to time: the Lord Chief Justice used a keynote speech at a Justice conference to extol self-regulation. Behind it all, Lord Justice Leveson kept the headlines rolling.
At the extremes, it is still possible to hear advocates for “pure” self-regulation or statutory control.
However, a remarkable degree of consensus seems to be emerging around what might be called some form of “co-regulation”, a combination of self and statutory regulation. There are an infinite number of possible models but Peter Preston, the former Guardian editor, is probably as shrewd an observer as anyone: “It isn’t as though the basic pillars of reform aren’t clear. They are. Add an independent standards commissioner to the mix. Give him a whistleblowers’ hotline. Allow him to launch his own investigations into stories…that are obviously offensive. Give him a right to fine newspapers (proceeds to charity) in egregious cases.”
This sort of approach would probably carry the Press Complaints Commission, Paul Dacre and Lord Judge—that gives it a pretty fair headwind, particularly if you went for the less challenging title “ombudsman” rather than “commissioner”.You read it first in NLJ.
Roger Smith, NLJ columnist & director of Justice. Website: www.justice.org.uk
Share this page
