Examination of Witnesses (Questions 100
- 119)
WEDNESDAY 6 DECEMBER 2006
MS CLARE DYER, MS FRANCES GIBB AND MR JOSHUA ROZENBERG
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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