Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 100 - 119)



  Q100  Lord Peston: The response of some of the media at least to sentencing and other things could fairly be regarded as feverish. Am I right that it is much more feverish than it used to be? It has grown remarkably. This also relates to Lord Lyell's question earlier about ministers, when I was young it would be inconceivable for a minister to start launching an attack—literally inconceivable—on a judge; it now happens. The world in that sense really has changed.

  Ms Gibb: I think there are two things about that. People now obviously challenge any authority figures and it is not off limits to attack anyone in authority in the way it might have been 30 years ago. Secondly the sentencing framework that judges are currently working under requires them, as you know, to impose sentences. The discretion is fairly fettered and a lot of these sentencing controversies arise because judges have applied the law—as we said earlier on in the Sweeney case—but that is not necessarily explained fully; the press or the media do not necessarily explain it fully and the public do not understand or want to understand that someone is coming out half way through the sentence. It is the framework they are operating within and the lack of the explanation as to how they reach the decision because it is immensely complex.

  Q101  Lord Peston: Should we assume on this Committee that we have lost respect for judges, it has gone forever?

  Ms Gibb: I prefer to think about it as public confidence. Respect is a bit of an old fashioned word and I think people can still have confidence in, say, the medical profession—call it respect if you like—whilst they can still be open to scrutiny. We have had Harold Shipman and we have had other medical controversies which have not damaged the standing generally of the medical profession in the eyes of the public. I think you can have respect and/or public confidence while having greater public scrutiny and criticism.

  Mr Rozenberg: I think the judges have to work for that. I do not think they can assume, as perhaps they used to, that it comes automatically with the role and with the knighthood. That is why public relations is so important and that is why perhaps it is in the judges' interests for them to be doing more in order to retain—and even regain—the public's confidence.

  Chairman: Listening to Ms Gibb, it may be more appropriate to say that it is deference that has gone, but that does not mean it is not possible to have respect. It is notorious that all institutions now have a sort of deference deficit, including this august House.

  Q102  Lord Peston: Could I just make sure I understand something that was said? You introduced this, Ms Dyer, when you were talking right at the beginning in response to somebody. Are you saying that Lord Phillips really ought to be taking a much stronger role in this? That seemed to be more or less what you were saying but you did not quite say it in those terms. Even if we cannot act as quickly as you said, as Lord Woolf has pointed out, someone ought to be speaking up much more now saying, "These people are doing a very difficult job in very difficult circumstances. They are trying very hard to play according to the rules one way or another and some of you ought to shut up" (that is perhaps a bit harsh).

  Ms Dyer: Now that they have their own communications office with several press officers they should be doing this. It was done on a fire-fighting basis by the Lord Chancellor's Department previously, but they ought to be anticipating and they ought to have a system geared up to respond quickly to these emergencies.

  Q103  Chairman: We are left with Lord Woolf's problem. I remember the evidence to us from Lord Chief Justice Phillips was that he sometimes found it difficult to speak for all judges at all times and he had an extremely senior and individualistic profession by definition. It would be difficult for a spokesman to speak up.

  Ms Dyer: The spokesman would basically be giving information; he is not speaking for the judges as such. He is giving correct information to correct inaccuracies and it is not hard to anticipate the areas of controversy.

  Ms Gibb: I think it should not all fall on the shoulders of the Lord Chief Justice. Half a dozen senior judges could be ready to be on Newsnight or whatever so that we always had the judicial view put in general terms even if they do not know the specific details of the case. There are always general points that can be made.

  Mr Rozenberg: It is not that difficult. When these controversial decisions emerge I sometimes get calls from broadcasters asking if I will appear on a radio or television programme and the first question is, "Why has the judge done this?" It is not my job to speak for the judges but I can at least put some of the context before the public and if I can do it then a judge can do it a very great deal better even if he or she is not familiar with the precise details of that case at that time.

  Q104  Lord Woolf: I am very interested to hear what you say, but could I first of all ask you if you think the establishment of the Judicial Communications Office has improved the position? It is clear from what you say that it is not satisfactory, but do you think there is an improvement?

  Ms Gibb: I think it is an essential first step as a facilitator if nothing else to put out speeches, particularly now that the judges have their own empire.

  Q105  Lord Woolf: The second thing that I think comes out of what you are saying is that that information office should know that sentencing is the hot topic and they should really go on a course or have somebody among them who knows something about the intricacies of sentencing so that they can give an authoritative explanation of what law requires.

  Ms Gibb: Them and/or the judges themselves.

  Q106  Lord Woolf: You would like to see a judge or judges being always available to make a clarifying statement. The last point is a question of whether it is feasible under the pressures which the judiciary face. If they are going to be good judges they must also sit as judges.

  Mr Rozenberg: The compromise would be to have a lawyer available because the people in that office are press officers trained in journalism but they are not trained as lawyers.

  Lord Woolf: That is a very clear message, if I may say so.

  Q107  Lord Lyell of Markyate: Just glancing at the big picture and looking back over the last few years, we had Lord Irvine who stood up strongly for the judges, who was then dismissed and we had the Constitutional Reform Act 2005 and a re-drawing of the lines, but the Constitutional Reform Act quite clearly puts a duty upon the Lord Chancellor and ministers to uphold the independence of the judiciary. If that does not happen, is it not more effective if the Lord Chancellor steps in quickly rather than expecting the Judicial Communications Office or the Lord Chief Justice to step in? Should not each control their own?

  Ms Gibb: Yes, I think they have distinct roles. I think that is absolutely right. The Lord Chancellor should be dealing with errant ministers but when judges are under fire or being misunderstood by the media or whatever the Lord Chief Justice should step in. They both have their roles to play.

  Q108  Viscount Bledisloe: Just taking up what you said about there being a lawyer, it is going to need more than that, is it not? As I understand it at the moment you have press officers putting out statements and that sort of thing but who do not have the status to make pronouncements. You are really going to need at the head of this office somebody of the same status as the judge who can say, "I do not know the facts at the moment, I will come back to you", pick up the telephone, get the judge himself who did the thing saying, "I must talk to you urgently", get an answer and ring back. The press officers, I am sure, do not get to speak to the judge, they get to speak to the judge's clerk.

  Ms Dyer: They do speak to the judge.

  Mr Rozenberg: Yes, they do speak to the judge but they are maybe less able to speak for the judge and understand what the judge is saying, and they are certainly not able to speak on behalf of the judge without having first spoken to the judge, whereas a lawyer would be able to understand the point rather more quickly and before speaking to the judge would be able to say something rather more authoritative than a press officer can who has to wait for a statement from the judge and is simply reduced to putting that statement out.

  Q109  Viscount Bledisloe: He is not going to have to be a 25-year-old who was called two years ago; he is going to have to be somebody of considerable seniority who can punch his weight and get the judge to really talk to him.

  Ms Gibb: Alternatively you could use recently retired circuit judges. I think the Judicial Communications Office has been considering this, a network of recently retired circuit judges who are good with the media.

  Q110  Viscount Bledisloe: That is what I say, somebody with status.

  Ms Gibb: Yes. There are one or two now who tend to be wheeled out.

  Chairman: Perhaps we should stop there before we draw up a detailed job specification.

  Q111  Lord Smith of Clifton: Given the broad bi-partisan nature of British politics in which there is not really much difference between one party and another, do you think there is a tendency on the part of editors, sub-editors and journalists to try to up the ante in this respect to try to put back a bit of the poetry and the contest into British politics which is lacking in the fields of economics and other things? In other words, do you think that the reporting of legal matters and judicial decisions has been seen as a compensation for the rather boring nature of the rest of British politics?

  Ms Dyer: Things tend to be seen as conflict, do they not? News desks love conflict and conflict between judges and the executive is seen as more interesting. A judge deciding such and such a thing which happens to be not quite the way the Government wanted it is played up as a snub for the home secretary. Mind you, ministers play into that nowadays in the way they react to court decisions against them.

  Chairman: That is one of the aspects that may be worrying about the off-the-record briefing possibility that you started with because it makes a perfectly satisfactory headline, "Judges' fury at minister's statement". What is that based on? It is based on an off-the-record conversation—which is perfectly legitimate—which a good journalist seeking to make a conflict story would feel entitled to go on. Off the record someone might say, "I'm hopping mad and all my colleagues are as well", then you have a "Judges' fury" headline, have you not? There are some difficulties about the informal thing for the judiciary, I would have thought.

  Q112  Lord Windlesham: I would like to probe, if I may, the relationship between the views of individual journalists and what might be regarded as the general outlook and policy of the paper as a whole. It is a delicate matter here.

  Mr Rozenberg: When I joined The Daily Telegraph from the BBC in the year 2000 I was not asked whether I shared the political outlook of the paper as it then was. I suspect that Charles Moore who offered me the job assumed that I did not share the political outlook of the paper as it then was and I have not been asked since. I do not think I do support everything that is in the leader columns of the paper and I am pleased to say that that is not a prerequisite and it does not seem to cause me any problems. I can say things on the weekly page that I write which express my view and they may well be different from the approach of the paper particularly on, for example, human rights, and the paper seems to respect that which is exactly as it should be and very gratifying.

  Q113  Lord Windlesham: All three of you are of course from what might be regarded as the more serious end of Fleet Street and therefore your own individual way of operation probably differs, nevertheless you are all in the same sort of business. Is this true of the mass circulation press, sensationalism being one obvious aspect of it?

  Ms Gibb: I think it is. To answer the first question, I think Joshua is right; I do not think individual views come into it. I think we all have to work to a news desk agenda and above that in each paper there is the framework and the philosophy and the particular interests of that editor and above him the owner. That is quite removed, I have to say. We might all write the story in a similar way but the actual prominence it gets—this is the same with the tabloids—and the tone of it and the space and so on and whether it carries an editorial, that is what makes a difference. That is decided by the paper's own interest to a degree.

  Ms Dyer: I am in the same position as Joshua; no-one has ever asked me about my politics or my views.

  Q114  Lord Windlesham: I was not thinking entirely of that, but there is the style and the underlying quality of sensationalism which is a crucial part of the mass circulation. Reporting crime is sensational.

  Ms Dyer: If you write for The Daily Mail if you write the same story as we are writing you will write it in a completely different way. You have to follow the paper's agenda I would say.

  Mr Rozenberg: I think that is right. Other newspapers do have a view of the world and in their selection of the news that is reflected.

  Ms Dyer: Not only in their selection of news but in the way they treat a news story.

  Mr Rozenberg: I agree. It might be difficult to work on a paper that gave one a very strong direction as to the way in which that paper expected the story to be presented. I do not think any of us is in that unfortunate position but it would be very difficult were we told by a news editor, "This is how we see this story, make sure you fit that template".

  Ms Dyer: If you worked on The Daily Mail I do not think you would even have to be told that, you would know you should write the story.

  Q115  Chairman: You have mentioned conflict but of course there is another respect in which the tone of a popular newspaper likes to personalise the news so instead of reading about Judge A you read about a 52 year old father of five, passionately interested in ballroom dancing as though that were in some way relevant to his judgment. That, of course, is part of the pop culture, to find personalities through which people can relate to public events. I do not know whether deference or respect are involved here, but it certainly makes it quite difficult for figures of authority when they are put in that intensely personalised frame.

  Ms Dyer: Figures of authority, I do not think people think in that way now. People want to know. Papers are becoming popularised.

  Ms Gibb: I think it is unavoidable.

  Ms Dyer: There is human interest; people want to know more about the people they are reading about. They do not see them as remote sphinx type figures as the judge used to be thought of in the past.

  Ms Gibb: I think Lord Falconer said recently that judges ought to be robust enough to be able to withstand that kind of comment.

  Q116  Lord Morris of Aberavon: We would like to hear the advice you would give to the Government about handling human rights. The DCA reviewed the Implementation of the Human Rights Act in July and concluded that "negative and damaging myths prevail about the Human Rights Act" and suggested that the media were responsible for this. Do you agree with this assessment? What advice would you give to the Government in tackling it in a practical way, tackling the myth that has apparently arisen?

  Mr Rozenberg: I am not sure it is entirely our job to be advising the Government on this or even this Committee. To some extent the Government has its own advisers and they should be capable of telling it how it should fight its public relations campaign. The Government is perfectly entitled to complain if we perpetuate these myths, but I do not think it is for us—I speak personally on this—to help the Government out of a problem that it finds itself in.

  Ms Dyer: And partly through its own creation because one or two home secretaries have themselves floated the idea of getting rid of the Human Rights Act or even coming out of the European Convention. The Lord Chancellor knows but did not say for a long time that it is impossible because part of belonging to the European Union is that we continue to comply with the European Convention on Human Rights and if we abolish the Act it would simply mean that people would just go to Strasbourg. The Lord Chancellor, in my view, has not been proactive enough and is only recently coming to the fore on this issue. He should in the past have stopped all this speculation. The Prime Minister himself speculated on it. They must know that it is an impossible thing to do, so why speculate on it as if it would be a good thing.

  Mr Rozenberg: I am not sure the Prime Minister does know but he famously got it wrong.

  Ms Gibb: The Joint Human Rights Committee recently in their report in November actually criticised the Prime Minister and ministers, as you know, for the way that the Act is being reported. It was not the media; they said it was ministers. I think that is what the Government should be doing, bringing ministers into line on it. They are peddling the wrong image of their own legislation basically.

  Ms Dyer: The Lord Chancellor and the Attorney General have been making speeches saying that the Human Rights Act is a wonderful thing, et cetera, but it does not seem to have gone to the other departments.

  Q117  Lord Morris of Aberavon: I take your point that your role is not to advise the Government. Can I put it another way? We are trying to write a report, what advice would you give us as to what to put in that report to correct the myths which apparently have grown?

  Mr Rozenberg: The Government has published documents, reports and papers setting the record straight. The Government has passed advice to officials who may not have legal training not to exaggerate the significance of the Human Rights Act, which is perfectly sensible. The Lord Chancellor writes letters to the newspapers and appears on radio and television to correct myths. I think Frances is absolutely right, if the Prime Minister can say in print that the Human Rights Act allows primary legislation to be overturned by the courts as he did then it is not up to us to try to put it right. If he cannot get it right, it is not surprising that papers sometimes mis-report it.

  Q118  Lord Lyell of Markyate: We have covered a certain amount of ground that I wanted to ask you about. I think we have agreed that both the Lord Chief Justice and the Lord Chancellor have important but distinct roles in the protection of the independence of the judiciary. If we look back about six months to 19 June this year the present Lord Chief Justice, Lord Phillips of Worth Matravers, wrote to circuit judges to express his "great sympathy for those judges who individually have been singled out for intemperate personal attack" in relation to sentencing. He went on to say that "personal and unmerited attacks on the characters of individual judges can only damage the public's understanding of and confidence in the criminal justice system as a whole". Do you agree that such reporting damages public confidence in criminal justice?

  Mr Rozenberg: Yes, I think there is truth in that. This of course followed the Craig Sweeney episode that we have just been talking about and following his unwillingness to speak up publicly on behalf of those judges, although the letter was inevitably leaked as I expect he thought it would be. The point to emphasise is the word "reporting" in your question. There is a limit to what we as reporters can do on our own initiative. Yes, we can write columns; yes, we can do broadcasts, but our main job is to report what other people say and for that we rely on people in authority speaking up on their own behalf.

  Q119  Lord Rowlands: In your answers to other questions we agreed that there was a changing role for the judiciary and the whole relationship between the executive and judiciary had changed with regards to legislation and trends. This raises the question that if judges are going to play this wider role, in what form should they be accountable? Again I refer to the Bogdanor lecture where he argued that it would be perfectly reasonable, for example, for select committees of Parliament to ask a judge about his judicial philosophy or general attitude to law and so forth. Indeed, judges do give lectures and do give their views. How accountable do you think in the new environment should judges be and what form should that accountability take?

  Ms Dyer: The main thing about judges is that they have to be independent so in terms of their decisions they are not accountable. They are accountable to the head of the judiciary, the Lord Chief Justice, for their behaviour but in terms of their decisions they are independent and their decisions can be overturned on appeal if they are wrong. Ministers keep saying "these unaccountable, unelected" judges as if they should be accountable to somebody, but in fact they are there to uphold the rule of law.

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