Examination of Witnesses (Questions 304
- 319)
WEDNESDAY 7 MARCH 2007
PROFESSOR DAME HAZEL GENN
Q304 Chairman:
Good morning, Dame Hazel. Welcome to the Committee, it is good
of you to come. Could I say that these proceedings are being filmed
for the BBC. Also, could I say to members of the public who may
be with us that there is an information sheet near the door which
relates to the discussion we are about to have. Dame Hazel, I
wonder if you would be kind enough, given the television coverage,
to identify yourself for the camera?
Professor Dame Hazel Genn: I am Hazel Genn,
Professor of Socio-legal studies in the Faculty of Laws at University
College London.
Q305 Chairman:
Is there anything you would like to say to us by way of an opening
statement? You know the ground that we want to cover.
Professor Dame Hazel Genn: Thank you for sending
me the questions but I do not think I want to make a statement,
I am happy to answer your questions.
Q306 Chairman:
I am very interested by your academic research and of course you
have an unusual locus of being both, in a sense, part of the wider
judicial scene and yet also a distinguished academic commentator.
In your research, Paths to Justice, one of the conclusions
which struck me which corresponds with a pretty familiar stereotype
is that people see judges as out of touch with ordinary people's
lives and this is a long-held perception or misperception of judges,
but at the same time the YouGov survey in The Telegraph,
which we have seen, shows not only that judges are absolutely
well-trusted but relatively well-trusted compared with other occupations,
including Members of Parliament and journalists, and also the
trust in them seems to have increased since 2003. I wonder how
you reconcile these two apparently disparate pieces of evidence?
Professor Dame Hazel Genn: I do not see them
as inconsistent. Before I start to say why I do not see them as
inconsistent I would draw your attention to the fact that I have
brought with me some findings from a more recent piece of work,
the Committee on Standards in Public Life, which asks those questions.
If you look on there, the relative standing—it is not the
standing of judges, it is the extent to which the public trust
the judiciary to tell the truth as compared with other groups
of people—is actually even better than the YouGov results
that you sent to me. I think what we have got there in 2006 is
about 81 per cent of the general population saying that they would
trust judges to tell the truth. I do not think that the two positions
that you have put to me are inconsistent. I think the first thing
that it is necessary to say is that public attitudes insofar as
we know about them are quite complex, they are not simple. What
we are tackling here are two different things. When you say "Do
you trust judges to tell the truth" or the public say "I
trust judges to tell the truth", that is an expression of
a basic confidence in our judiciary which I believe we take for
granted, that the public believe or know that the judiciary are
not corrupt, that they do not tell lies, that they are independent,
the public trusts them to apply the law impartially, which is
what judges are supposed to do. As I said, I think that we take
that for granted and we criticise judges for other things. I think
if you ask that question in many other jurisdictions, they would
not be able to come up with 81 per cent of people saying that
they trusted the judiciary in that way. I think that is something
that we forget and one of the things that I will say later on
is that I think it is necessary for us to make those kinds of
things clear and to remind the public of the extent to which they
do have confidence in the courts in that broader sense. On the
other hand, if you ask people about what is their vision of the
judiciary, how do they characterise the judiciary, people say
that they see them as being rather elderly, male, rather upper-class
and, to be frank, that would not be an unfair representation.
Indeed, even if you are a woman, like our first lady Law Lord,
if you dress them up in a wig they are going to look pretty much
like an old man, so we do have a problem with that. The fact that
people say, "I think they seem a bit out of touch, I am not
sure that they really know what goes on in the real world"
is not inconsistent with saying "I trust them" and I
think that they do trust them and what we see from these YouGov
polls is that by comparison with other institutions they trust
the judiciary very much. I think what that is expressing is a
basic fundamental confidence in the justice system, in the courts.
Yes, we can make criticisms about how individual decisions might
be reported, but I think we do need to remember that and I do
not see those two things as inconsistent. People might say, "I
would like to see a few more women on the bench" and if people
took their wigs off they might see a few more women on the bench.
They might like to say, "I would like to see the judiciary
more reflective of the diversity of society". None of that
is inconsistent with saying "I feel confident about the judiciary
that we have".
Q307 Chairman:
That is such a helpful analysis and I do not want to pick it apart
too much but you have built an awful lot in your answer on that
question, "Do they tell the truth?" I suppose it would
be perfectly possible for people to see judges as a class of person
who you would expect to tell the truth without necessarily committing
yourself to all those other good qualities that you adumbrated
of impartiality.
Professor Dame Hazel Genn: I think if you look
at the evidence, the question is asked in different ways. We ask
them "Do you trust judges to tell the truth?" One of
the other pieces of evidence that you gave me is asking the general
question, "Do you trust them?" What I am saying is it
is a kind of expression. The answer to that question is an expression
of public sentiment about the judiciary and you can compare that,
for example, with public sentiment about politicians or government
ministers, or, indeed, estate agents which come fairly low on
that list.
Q308 Chairman:
Accepting your description, how do people arrive, the people who
answer opinion polls, at their perceptions of the judiciary? Very
few people in their lifetimes appear in court in front of a judge
and have a chance to see them in action, so how do they arrive
at these conclusions?
Professor Dame Hazel Genn: I have got some views
but before I give you the views one of the things that I want
to say, and I think it is important and I think it is helpful
that there is an opportunity to say in this Committee, is that
we are all fumbling a little bit in the dark here and the reason
that we are fumbling in the dark is that there has been no sustained
tradition of investment in research into public attitudes to the
judiciary. When I was doing my research on Paths to Justice
I was absolutely staggered at how little information there was
about attitudes to the judiciary in England and Wales. In other
jurisdictions there is a long tradition of taking the temperature
of the public in relation to the courts and specifically in relation
to the judiciary and we do not have that. I remain staggered that
often when we have conversations about what the public think about
the judiciary, in the end everyone falls back on those three or
four questions that I asked in Paths to Justice and which
have been repeated subsequently by the Legal Services Research
Centre that is always doing those things. I think it is appalling
that we are depending on that for our knowledge. The other surveys
that I have looked at, like the British Crime Survey, citizenship
surveys, that do test the water a little bit in relation to public
attitudes are always about the criminal justice system, generally
about crime and often about sentencing. We do not have a good
understanding of what public expectations are, what they think
and how those views are formed. I have finally brought myself
back to your question. How are those views formed? I think in
a rather haphazard way and I have no doubt, and I know this is
one of the things that is on your mind, that the media plays a
role in shaping public perceptions about the judiciary. I do not
think that people are taught properly about the justice system,
about the judiciary and about the difference between civil and
criminal courts at school, it is not something that we are brought
up on. People grow up in relative ignorance about what the justice
system is there for and what it does. What people think is that
the justice system is simply about bringing criminals to justice.
When you ask people, as I have done, how their views are formed
they will say, "I do not know, I suppose it is the media,
what I read in the newspapers and what I see on the television".
The danger with that is, of course, that the reporting in the
media and representations on the television are very selective,
they are rather haphazard. They focus very much on criminal courts
because that is what is interesting and that is what is sexy,
crime and criminals. They do not focus particularly on what happens
in all of the other areas of the justice system that are often
very much more important to the lives of ordinary people. They
absorb things from the newspapers, they watch fictionalised, dramatised
representations of the judiciary and that is how they form their
view. There is something that is a part of that which is what
is it that the media report about the judiciary and largely the
kinds of things they report are the odd comment that is made in
court, criticising the judiciary occasionally for being a bit
soft or maybe not seeing eye to eye with the Government, as they
do not, on questions about human rights. What they are not reporting
is serial bad behaviour by the judiciary so the high standards
of the judiciary that we have, their commitment and professionalism
does not give the newspapers that much material to seriously damage
the fundamental beliefs in our judiciary so we do not have stories
about corruption, the way that the public would learn about it
would be through the newspapers.
Q309 Chairman:
The media coverage is more isolated, high profile quirks or incidents
than it is of the assumed sustained professionalism of the judiciary.
Professor Dame Hazel Genn: Yes, because that
does not make news. Atrocity stories make news and headlines.
Where is the headline in this? What is the handle for this story?
A story about a judge behaving with outstanding levels of professionalism
in court is not going to make news in the same way as a doctor
performing an operation absolutely beautifully does not make news.
That is a fact of life, it is not just about the judicial system,
it is everywhere else, newspapers have a job to do and they do
their job. If we are saying that is the principal source of information
for the public about the judiciary, we have to ask questions about
what kind of information we get and whether that is a satisfactory
state of affairs and I would say probably not.
Q310 Chairman:
One thing I do not want to lose from your remarks is the point
about schools, the sort of work, for instance, the Citizenship
Foundation has done over the last 20 years or so; one assumes
that should be a plank of citizenship studies in schools.
Professor Dame Hazel Genn: There should, but
there is a lot more to be done on that. There are real problems
in getting education down at that level in a way that is attractive
to young people and engages their attention. Wearing another hat,
I have been involved in a public legal education task force and
talking to people about the problems of providing this sort of
education and learning in schools and we have a problem which
is that the people who are in schools who have responsibility
for delivering this learning themselves do not really know the
difference between the civil and criminal courts, in fact they
are not sure what civil courts are and they do not know that we
have them. We have people saying to us, "How can we become
better educated so that we can pass on this information to people
in schools?" I think there is an acceptance that this needs
to be done, that it is not reasonable that people grow up being
able to distinguish between different varieties of trees but not
know that there is a difference between civil and criminal courts.
Q311 Chairman:
I cannot resist asking you, since you are probably a better interpreter
of this than anybody else we can find, what effect do you think
a programme like Judge John Deed has on the general public's
perceptions?
Professor Dame Hazel Genn: I think the general
public think that is how judges behave and, of course, judges
are appalled looking at Judge John Deed but where else
are they getting their information from? As part of my research
I have talked to people waiting to go into, not so much courts,
but things like tribunals which are very informal, people sitting
around a table, and they think they are going to go into a room
that will have a judge and a jury in there because the only image
that the public has in their mind is of a crown court because
that is all they see on the TV.
Q312 Chairman:
You do not think the fact that Judge John Deed is constantly
slugging it out with the Lord Chancellor assists the popularity
of the perception?
Professor Dame Hazel Genn: I think the constitutional
significance of that may be lost on the average viewer.
Q313 Lord Morris of Aberavon:
Professor, defending the judiciary is an obligation placed on
the Lord Chancellor, ministers generally and the Lord Chief Justice.
Given this evidence that we have had regarding the disparity in
trust, and it is a huge one, whichever figures you have, with
81 per cent plus trusting judges to tell the truth and showing
very low esteem for government ministers, would you not expect
the Lord Chief Justice to have a greater capacity, to be more
persuasive to defend the judiciary, than the Lord Chancellor and
other ministers?
Professor Dame Hazel Genn: I think that is quite
a sophisticated question, I looked at that quite hard when it
was first asked. I think the first thing that I want to say is
that we all have a responsibility to defend the independence and
the reputation of the judiciary, it matters to all of us, it is
extremely important that the public continues to have high levels
of confidence in the judiciary. I think we all share that responsibility.
As to the question about where the division of responsibility
is between the Lord Chief Justice and the Lord Chancellor, these
are new times since the Constitutional Reform Act and I think,
again, there is a shared responsibility. It is very helpful that
these questions are being asked in this Committee so that we are
focusing on the question of where that responsibility lies and
who has responsibility for what. As to the question of whether
the public is more likely to believe what the Lord Chief Justice
says than the Lord Chancellor, I do not know, I could not be sure,
this would be an interesting question to ask the public. I think
what I am clear about is that they both have a very important
responsibility and what we have to be careful about is that things
do not fall down the gap on the assumption on both sides that
somebody else is doing it.
Q314 Lord Morris of Aberavon:
Are there any lessons to be learned from the Sweeney case,
which I am sure you are familiar with?
Professor Dame Hazel Genn: I have read the transcripts
on that, I am not sure that it is for me to comment specifically
on that case. I do have some views in general about that division
of responsibility and about what the Lord Chief Justice and the
Lord Chancellor need to be doing in terms of public confidence
and I think that there are two issues that arise which in my reading
of the transcripts have got conflated in your discussions with
the people who have appeared before you. You have got the issue
of fire fighting and damage limitation when there is a high profile
case that hits the press. That is a really practical, concrete
issue that needs to be sorted out because where there has been
misreporting, and sometimes there is misreporting because the
people reporting it do not understand what is going on, and it
is possible that happened on that occasion, there needs to be
a system for correcting misapprehensions and there has to be some
working out of where responsibility for that lies. It is not my
job to say it, but it is absolutely clear from that case that
misreporting by the press needs to be corrected by somebody and
whose responsibility that is has to be worked out. That is the
fire fighting and it is a reactive function but it is very real
and it is very important. There is a second question about a proactive
longer term responsibility for enhancing, for building public
confidence and for educating the public and I am not sure that
I am clear where responsibility for that lies. Again, I think
it is shared. I think the DCA, the Lord Chancellor and the Secretary
of State for Constitutional Affairs being the same person, given
their responsibility for the administration of justice, has a
responsibility for fulfilling that function. I am talking about
education, I am talking about research that we understand public
expectations and what we need, I am talking about outreach work.
I think that the DCA, the Lord Chancellor, the Secretary of State
for Constitutional Affairs has a responsibility. I think also
the new Judicial Office, given the Lord Chief Justice's new responsibilities
as the figurehead of the judiciary also shares in that responsibility
and that there is potential for proactivity there in thinking
about how the Judicial Office with whatever resources it has got,
or maybe it needs more resources to do it, can help first of all
to understand public expectations and perceptions of the judiciary
and what it can do in practical terms to improve that. I think
getting those two things muddled up is not all that helpful, it
needs to be separated and people have got to sort out where responsibility
lies. I said what you do not want is it falling down the middle
between the two leaving everyone saying "It is not me".
Chairman: That is a very important point
for the Committee as a whole.
Q315 Viscount Bledisloe:
Lord Morris's question contrasted the Lord Chief Justice as a
judge with the Lord Chancellor as a minister with not much public
confidence in them. Is it not the case that at least in the past
the Lord Chancellor has been seen as something rather in between
and rather differentiated from other government ministers who
might have rather greater confidence of the public than ordinary
ministers? Is Lord Morris's worry not likely to get much worse
if the Lord Chancellor becomes a career minister in the Commons
switched between having been in transport and on his way to foreign
affairs, shall we say?
Professor Dame Hazel Genn: I think that there
could be an issue there. We have been talking about low levels
of trust in government ministers and in politicians in general
and I do not think that is good, I think we need to be taking
seriously about how we can build those levels of trust as well.
As I said before, I do not think that the public has a sophisticated
understanding of the difference between when the Lord Chancellor
is being the Lord Chancellor and when he is being the Secretary
of State for Constitutional Affairs. There is no reason why they
should, but that is not to say that the public is not capable
of understanding if somebody takes the trouble to explain it.
You are really asking whether or not if the Lord Chancellor, the
Secretary of State for Constitutional Affairs, is somebody in
the Commons who just appears like any other government minister,
whether that might create a problem, I think it is conceivable
that it might but I have not got any evidence to say yes, definitely
it would.
Q316 Lord Smith of Clifton:
You largely anticipated my question with your very full answer.
In your book, Paths to Justice, you drew attention to "a
depth of ignorance about the legal system and the widespread inability
to distinguish between criminal and civil courts". You expatiated
at some length on that. Can you, looking ahead, and you were invited
in the last supplementary, say to what extent do you think the
reforms introduced by the Constitutional Reform Act 2005 will
help public understanding of the justice system generally, or
do you think that without more remedial action ignorance will
continue?
Professor Dame Hazel Genn: I think those changes
in themselves are not going to create, suddenly over night by
osmosis, a new understanding of the justice system. What I was
saying was that people do not have a terribly good understanding
of the intricacies of the justice system. I think there were elements
in the changes that took place in particular, for example, the
establishment of an independent Judicial Appointments Commission,
which I think the public does have some understanding of about
how judges get appointed, and the fact that you now have a body
that is independent of Government is the sort of thing that will
probably help to promote public confidence. We are not saying
the fact that we have had these constitutional reforms is going
to by itself improve public understanding, no.
Q317 Lord Smith of Clifton:
Do you think the physical separation from here and the formation
of a supreme court will clarify things rather more than the blurred
notion that the House of Lords takes judicial decisions?
Professor Dame Hazel Genn: I think it would
make it easier for people like me who have to teach the stuff
to explain it, particularly when we are doing it in other jurisdictions.
Being able to point to a very real physical geographical separation
makes it much easier and takes considerably less explanation than
the sometimes torturous explanation that one had to give about
how we hold the separation of powers dear and the independence
of the judiciary, but the head of the judiciary happens to be
a member of the government. If we are talking about explaining
to the public, that kind of separation will probably make things
clearer. I would not say that people were necessarily losing sleep
overnight but that is because people did not necessarily know
about it or did not really understand it.
Q318 Chairman:
We certainly want to make the life of distinguished academics
easier.
Professor Dame Hazel Genn: Thank you.
Q319 Lord Peston:
You used the expression "People not losing sleep". Obviously
we on this Committee think what we are discussing matters and
you as a professor of law think this matters, but has anybody
done any research with the public saying "Do you think it
matters"? In other words, there is a difference between do
you trust the judges, but do you care anyway?
Professor Dame Hazel Genn: You should not confuse
not knowing in detail with not caring because I think the public
does care very much and one of the things that I said in the Paths
to Justice book was that although people did not have a good
understanding, they have a view and they do care about the judiciary
and about matters to do with the justice system. It does matter
to people, it is part of a sense of well-being and a kind of confidence
that we live in a fair society and that our rights can be protected.
When I say people were not losing sleep, the contradiction between
having a head of the judiciary, which is supposed to be independent
who is also a member of the government, the detail of that is
not something that I think members of the public would naturally
understand very well. If you were to explain it to people, and
people are not stupid by any means, people would be able to understand
what the situation was previously and my view is, but I am only
speculating here, they would feel more comfortable with that kind
of clear separation.
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