Select Committee on Constitution Minutes of Evidence


Examination of Witnesses (Questions 85 - 99)

WEDNESDAY 6 DECEMBER 2006

MS CLARE DYER, MS FRANCES GIBB AND MR JOSHUA ROZENBERG

  Chairman: Good morning and welcome. Thank you very much for coming to share your insights with us; we are very grateful. As you know we are doing a short inquiry into the relationships between the judiciary and the executive in the new post-reform situation in which we now are and we are trying to see what role, if any, there is for Parliament in that as well. It is good to have the chance to talk to distinguished doyens of the legal journalism profession of the sort we have here. I should just say that this evidence session will be televised and also I have to ask my colleagues whether they have any declarations of interest to make before we start. I should declare that I am Chairman of the Hansard Society for Parliamentary Government. Are there any other declarations?

  Lord Woolf: I declare an interest as a former Chief Justice who still sits as a judge.

  Q85  Chairman: Thank you. I should also say that a transcript of the evidence will be available for you to look at afterwards. I do not know if any of you would like to make any sort of opening observations; if not we will go straight into questions. If there is something that each or all of you would like to say, now is a good moment to do it.

  Mr Rozenberg: I would just say that I did write something about this subject in response to some draft questions from your learned clerk which appeared in The Telegraph on 20 October. By all means, if that is of any use to you, please take that as my evidence. Apart from that I think all we wanted to say was that it is going to be rather difficult for us to report this session, so we are in a rather unusual position.

  Q86  Chairman: To start the questioning, obviously our focal interest is the ways in which the news media portrays judges and, when there are these periodic spats between ministers and judges, the way they are reported. I wonder in your own careers—particularly that part of your careers as legal editors—how you perceive relationships having changed between the senior judiciary and the news media, given that you have had a very great change in the reality of what you are reporting in terms of the relationships. How do you perceive the changes in the way the news media report it? Perhaps I should say, do not feel obliged all of you to respond to every point, but if you have something that might help us we would be grateful.

  Ms Dyer: Perhaps I could start off with the relationship between the news media and the judges. My career goes back to the early 1980s; the Kilmuir Rules go back to 1955 and the Lord Chancellor at the time, Lord Kilmuir, was asked by the BBC to allow judges to take part in a programme about famous judges of the past. He wrote a letter back saying that judges should not appear on the wireless or on television without the consent of the Lord Chancellor. It developed that judges did not speak to the media because of course they knew that if they asked the Lord Chancellor the Lord Chancellor would say no. Lord Hailsham continued that tradition and it was not until Lord Mackay became Lord Chancellor in 1987 that he, in his first interview, said that the Kilmuir Rules no longer apply and that judges were free to decide themselves whether to speak to the media or not. Since then judges have participated a lot more in discussion in the media and have taken part in programmes. Lord Chief Justice, Lord Taylor, was on Question Time on television and of course Lord Woolf, when he became Lord Chief Justice, was very media friendly and gave regular briefings. To some extent it depends on the Lord Chief Justice of the time. I think Lord Phillips has not yet given a media briefing, he has just given one interview. However, the judges themselves have become much more forthcoming and are interviewed. I did a series of interviews last year with judges about a very political subject. Traditionally they have not spoken on politics, but in this case they spoke on conditions of anonymity and were very, very forthcoming indeed about how they felt the Government was trying to marginalise them with a series of acts which were reducing their discretion.

  Q87  Chairman: That last point is exceptionally interesting. Are we going to move in the same direction as the parliamentary press gallery and lobby terms? Are we going to have judges giving deep background briefings but strictly non-attributable that you would then write stories about?

  Ms Dyer: I have done that since then on another issue which now escapes me. I have spoken to a number of judges since then.

  Mr Rozenberg: I wrote a story a week or two ago saying that senior judges were concerned about legislation which has been passed and which is due to come into effect. I did not name the judges but two judges had spoken to me spontaneously and independently expressing concern. I do not think it is going to be particularly widespread but one does see judges informally more and more and sometimes if there is something that they are concerned about they do in fact talk about it.

  Ms Gibb: Can I go back to what Clare was saying at the beginning on the historical context? I think in 20 years, as Clare was saying, it is quite a change not just with the Lord Chancellors and the Kilmuir Rules but actually a change in the attitude of the judiciary following Lord Lane's tenure. He very much took the view that judges should just say what they had to say in court and should have nothing to do with the press. In a sense that really brought the whole issue to a crisis because he was quite widely criticised—unfairly to some degree—but partly that emanated from the stance he took. Following that Lord Taylor took a distinct decision to open the whole thing up, to do the Question Time that Clare has mentioned and to do press conferences, interviews et cetera. It was a policy decision. Some feel that he actually went too far, that the Question Time performance was a mistake because there you had a senior judge talking about matters beyond the criminal justice or civil justice system and discussing policy matters. Following that I think there has been a bit of a rowing back as well and now we are at the position where I think judges are trying to find a middle way, not quite back to the Question Time, but how do they, in the new regime, have a relationship with the media?

  Ms Dyer: I think that is true of the Lord Chief Justice but I do not think things have changed with the individual senior judges. I think they are as forthcoming as they were previously.

  Mr Rozenberg: I think it is very significant that the present Lord Chief Justice has not had a single press conference in more than a year. Lord Woolf, when he was Lord Chief Justice, followed the practice of his immediate predecessors and did speak to the media. Lord Phillips has quite deliberately chosen not to, which is all the more significant given his increased responsibilities about which I know you want to talk.

  Q88  Chairman: The logic of a greater separation of powers is that the judiciary, like other important bodies in our society, has in a sense to make a case for itself. It has to constantly be validating what it does, the value of what it does and how well it does it to various stakeholders, notably the British public. I wondered what you thought of the Judicial Communications Office which presumably, if there were a press conference or if there were a press release, would be dealing with it. What more, if anything, should they be doing or are they doing?

  Mr Rozenberg: What they could do is act as the public spokesman for the judges in a way that they currently do not do. Either the Lord Chief Justice or somebody deputising for him could and should speak out or, if he thinks that he wants to maintain a low profile for tactical reasons, the Judicial Communications Office could have a public spokesman who is trained, able and authorised to speak on the judges' behalf without having to refer everything that he or she might say to an individual judge. In the sense that Sir Bernard Ingham knew Lady Thatcher's mind, this spokesman would know what the judges were thinking without the need to check each individual comment that he or she might make. This would be a radical departure, but if the judges are going to follow the practice of the present Lord Chief Justice and not speak publicly when they are under attack, it might be a good idea to enlarge the role of the Judicial Communications Office beyond the routine of putting out press statements and organising press conferences.

  Q89  Chairman: Something slightly more proactive and less reactive.

  Ms Gibb: That obviously requires a big step, a leap of faith, because the person has to be entrusted to say what the judges would want to say. The only alternative to that is having half a dozen judges who are ready and able to do that press person role on television, radio and so on which they have not really developed.

  Ms Dyer: They need somebody who is ready on the day to produce a correct version of what has happened. For example, in the case of Craig Sweeney there was a huge outcry sparked by ministers saying that this judge has got it wrong, he is too lenient, then about two days later something was released saying that it was completely in line with the existing guidelines and spelt it out chapter and verse how that was the only decision he could have reached. There ought to have been somebody in the Judicial Communications Office who could have found out that information and put it out on the day and countered what ministers were saying or maybe even stopped them saying it. We would not then have this idea that there were these terribly lenient judges who were just doing it off the top of their heads. The public needs to know that they are acting on guidelines.

  Mr Rozenberg: On the whole the Judicial Communications Office feels that it cannot speak for the judges, it cannot pre-empt the judges, without authority from a senior judge or the individual judge concerned. They will gladly put out the judge's sentencing remarks or any comments that the judge wants to be passed to the media but, as Clare says, they are not going to take a proactive role and explain something—quite unlike the press office of any department—the Department for Constitutional Affairs, for example—which would move quite rapidly to rebut something that ministers do not like.

  Ms Dyer: They need to be following the media, hearing what is on the radio and immediately get in touch with the judge, work out what the actuality is and put that out immediately.

  Q90  Lord Woolf: That should happen; it is obviously highly desirable. However, I would question the practicality of it happening as quickly as that, speaking with some experience. First of all the press office has to find out what the judge actually said in his sentencing remarks. Without that it is very difficult to form a judgment. Secondly, there has to be somebody who is sufficiently familiar in that particular area of the law and I am afraid our law has become so complicated that there are problems in being able to make a clear answer. For the judiciary to issue something which is not correct can make the position worse. Do you think there is force in what I have just suggested to you and really you are asking something which the judiciary would not be capable of doing? I should add, the judges who could give authority would have to be of seniority and they are probably sitting in court.

  Ms Gibb: I think it can and should be done within a day. You can get out the sentencing remarks that very day if it is a high profile, controversial case. That part of it should be possible. As for finding a judge who is available, that is where you need to build up a network of people who can and are able to issue a statement. It does not need to be long but it needs to be there. The Sweeney case was a perfect example of how damaging it can be to have that gap with nobody stepping in and in this case neither the Lord Chancellor nor the Lord Chief Justice actually said anything for two or three days by which time pages and pages of the story were running, particularly in the tabloid press.

  Q91  Lord Morris of Aberavon: The case of Sweeney has been mentioned. There was a gap. The judgment was on a Monday; I was rung up on the evening of Monday and discovered what had happened in the course of Tuesday. I did 10 television and radio interviews but there was a complete gap from the Lord Chancellor. If you recall I think he made a statement first to defend the Home Secretary. Only lately, after the intervention of a junior minister, did he speak up. The correction of fact is simple; that could have been done. What do you expect this information office to do other than that?

  Ms Dyer: They do not need to have huge expertise in wide areas of the law. The main area of controversy is sentencing actually. Most controversial cases involve sentencing. You could have somebody who knew about sentencing who was there for that particular purpose. They have about three press officers I think so you could have one person there who knows about sentencing and who is in contact with the judges. Surely with technology the sentencing remarks could be put through the intranet. You can anticipate to some extent which cases are going to give rise to controversy.

  Q92  Lord Lyell of Markyate: The Sweeney case almost tested the system to destruction for a few days. Whether or not the responsibility is on both sides, you pointed out what the Judicial Communications Office might in future do in circumstances like that, but was there not also a very immediate duty on the Lord Chancellor and on all ministers to abide by what is now the law about not criticising judges and being extremely temperate in any comment one makes on a judicial decision?

  Ms Gibb: That case was unusual in that judges were under fire both from ministers and from the media and I think that neither party acted swiftly enough. In that case the Lord Chancellor should have stepped in much more quickly to defend judges in the face of some of his colleagues' comments. Simultaneously the Lord Chief Justice could have given a short statement saying that the judge was acting within the law as set down by Parliament.

  Mr Rozenberg: The context of that case was, as Lord Morris says, that the judgment was on a Monday but the previous day The Sunday Times had reported that more than 200 of Britain's top judges had given unduly lenient sentences to criminals guilty of serious crimes, according to a list released by the Attorney General. There was already an appetite by Monday for lenient sentences and soft judges. The Sun started naming and shaming these judges. I rang up the Department of Constitutional Affairs to see if the Lord Chancellor was going to be speaking and I was told by a relatively junior press officer that given the constitutional position having changed and the Lord Chief Justice now being head of the judiciary it was a matter for the Lord Chief Justice to speak out, although I was then told that the Lord Chancellor had agreed to do Question Time on the television late that Wednesday evening and I was given to understand he might say something, but of course it was going to be too late for Thursday's papers. The Lord Chief Justice was abroad in Poland, but even so more could have been done and it appeared to us that the Lord Chancellor was leaving the judges to swing in the wind, feeling that it was a matter for the Lord Chief Justice to respond—which he felt he did not want to do, certainly publicly.

  Q93  Chairman: Just moving on a little bit, you clearly are very potentially influential in shaping perceptions, and I wonder the extent to which jointly and severally you see yourselves—as I am sure all journalists of integrity do—as merely reporting as accurately as you can what is going on or whether you would concede that what you write and what is written in other sorts of newspapers how far that actually serves to shape the public's perception of the judiciary and therefore whether all journalists who report on this sort of issue have any special responsibility over and above the general integrity of a good journalist.

  Mr Rozenberg: I think we do have that responsibility. There is a limit to what we can do on our own initiative, although I think we all tried to explain to as many people as wanted to listen the basis of the Craig Sweeney decision. It so happened that yesterday the same judge, the Recorder of Cardiff, Judge Griffith Williams QC, passed a sentence of two and a half years for involuntary manslaughter. It was recalled by the news agency that he was in the judge in the Sweeney case and there was the makings of a soft judge (in quotation marks) story. "Was he not the judge in the Sweeney case?" people said. "Yes", we responded to our news desks, but of course he was entirely vindicated in that case when the Attorney General decided not to refer the case to the Court of Appeal as unduly lenient because the Attorney General took the view that the sentence would not be increased by the Court of Appeal and indeed the sentence—or, to be more accurate, the tariff—was endorsed by the Lord Chancellor. I made it clear to my news desk that whether or not two and a half years was unduly lenient—and it struck me that it was not on the authorities in this sort of case—it certainly was not another example of a judge getting it wrong because the Recorder of Cardiff had got it right on the previous occasion. We do all the time talk to our news desks, and those involved, and explain how we see the stories as being different from the immediate reaction of those who have not been in this area of work for as long as we have.

  Q94  Chairman: Do either of your colleagues have anything to add on that point?

  Ms Dyer: I think that is right but I do think that the media do play a big role in how the public see judges, not only in this country but in other countries as well. I come from Canada and in Canada the supreme court has had a very bad reputation for a long time for being too interventionist just as the judges here in some quarters are thought to be too human rights based, too ready to allow things on human rights law that the public disagree with. Even among quite sensible commentators in Canada there was a view which has apparently changed now because the court recognised this and tried to do something about it in their judgments. It is certainly not new. I remember back in the time of Spycatcher one of the tabloids ran a front page of the judges upside down, the ones who had ruled in favour of the Government and it said, "You fools" at the top of it. I think there is a lot of incorrect reporting about the judiciary which does play a big role in how the public see the judges.

  Q95  Lord Goodlad: I would like to ask how the witnesses see the perceptions of the readers of your respective newspapers of the role of the judges and how, if at all, that has changed in recent years.

  Ms Dyer: Judges were seen to be too right-wing in the time of John Griffith who wrote The Politics of the Judiciary back in the time of Thameside (Lord Woolf said that when he died "Thameside" was bound to be written on his heart). They were then seen to be too right-wing generally. Now they are seen to be too left-wing, too bleeding liberal, too wet.

  Mr Rozenberg: Too pro-human rights and too soft. Too soft on sentencing is how they are perceived.

  Ms Dyer: At one time they were seen to be terribly establishment minded and they would always rule on the side of the Government and to some extent that is true. Now they are seen to be much too liberal. The Government tries to get tough and do things to help the public and the judges sabotage it. That is the general view.

  Q96  Lord Goodlad: Is this reflected in readers' letters to you and your news editors?

  Ms Gibb: Not to us.

  Q97  Lord Goodlad: How do you reach that impression?

  Mr Rozenberg: It is difficult but I think it is the public view that you get reflected from news desks. Just as there is a popular myth that judges in this country bang gavels, these myths are very hard to dispel. Stories fit into a particular template. The story of a soft judge letting somebody off too lightly fits into that template very well and therefore tends to get prominence in a newspaper because it is a story that a news desk can understand. If it is something particularly obscure, however interesting to the lawyers, but does not fit into a preconceived category like sentencing or like ministers being successfully judicially reviewed and being found to be acting unlawfully it is more difficult to get that sort of story into the paper.

  Q98  Lord Rowlands: I wonder if I could broaden the discussion. Is this discussion we are having now reflecting the sea change taking place between us with the executive and the judiciary, between Parliament and the judiciary? I read with interest Vernon Bogdanor's lecture on "Parliament and the Judiciary: The Problem of Accountability". He says this: "that judges are increasingly making decisions, which used to be made by politicians, and which many will characterise as political. The decisions made by judges tend to limit the options available to government. It is very possible, therefore, that there will be greater conflict between the judiciary and Parliament". Has there been a change in the whole relationship beyond the issue of just the way it is being reported?

  Ms Dyer: Yes. The law has changed and the judges are only interpreting the law.

  Q99  Lord Rowlands: So you think human rights legislation has been the watershed in this?

  Ms Dyer: Incorporating the European Convention of Human Rights into our law means that the judges have to go further than they previously might have gone in deciding something. It gives them more discretion because they have to see whether something complies with article two, article three. It has brought discretion in judicial review.

  Ms Gibb: That was the previous change, the growth of judicial review, which really brought the judges into the limelight and made them have to adjudicate on more politically sensitive decisions.

  Mr Rozenberg: It is interesting to speculate on what would have happened if the Human Rights Act had not been enacted, whether judicial review would have grown anyway. I think that it might because if you look at the period up to the general election of 1997, you saw the then Labour Opposition very cautious about opposing what was going on for fear of not winning the 1997 election and you saw to some extent the judges under Lord Taylor stepping into the gap and acting as a sort of unofficial opposition I think. You have seen that subsequently under the present Government when again the Opposition has been reluctant to oppose too much and the judges to some extent see themselves as defenders of the public interest.

  Ms Dyer: If a government has a big majority—as this one has, or certainly had—and tries to exceed their powers or push their powers as far as they can go, then the judges have to step in and it is not because the judges are suddenly exceeding themselves trying to oppose the Government necessarily, it is because the Government is pushing at the boundaries and that is what these judges I spoke to were complaining about. For instance, with the ouster clause that they were proposing when they were trying to fetter the courts' ability to do anything, to have any say about immigration and asylum decisions, to question the legality of these decisions, that was something that judges would have done something about if they had not stepped back and decided not to go ahead with it. In things like the control or detention without trial this Government has tended to push its powers further perhaps than some other governments, also with mandatory minimum sentences.


 
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