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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