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Damage of Daily Mail’s ‘ENEMIES OF THE PEOPLE’ headline laid bare in new report on judicial recruitment crisis

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House of Lords’ committee ‘seriously concerned’

The House of Lords Constitution Committee has said a number of factors have damaged the attractiveness of taking judicial office, including: insufficient salaries, “creaking” in-court conditions and “unjustified” right-wing press attacks.

The report notes the amalgamation of these factors, and more, leaves the Committee “seriously concerned” about the recruitment of new judges, particularly in the High Court.

In the words of Joshua Rozenberg, writing for Legal Cheek Journal, “the High Court has been running below full strength for some time”. Last year, there were 14 vacancies and six posts were left unfilled. Word on the street is that 19 appointments were approved this year after “up to 25” vacancies were advertised.

The latest comments from across Legal Cheek

The committee, which last week urged for more clarity in statute-making, thinks this recruitment problem is down to a number of factors, pay being one of them. Judges are often drawn from the tops of the barrister and solicitor profession, where multi-million pound earnings are not uncommon. High Court judges get less than £200,000.

Public sector budget restraints mean the committee isn’t hopeful pay will be increased. Instead, it urges the government to address other issues which undermine the attractiveness of the judiciary. Two of the more interesting are working conditions and judges’ relationship with politicians/the media.

On the first, the maintenance of the judicial system was described by committee witnesses as “absolutely creaking”. Ex-Lord Chief Justice Lord Thomas noted there are buckets in every area and plaster falling off walls in the “generally dilapidated” court system. The committee, which includes Blackstone Chambers’ Lord Pannick and former Lord Chief Justice Lord Judge, says “a considerable investment of funds and political energy” will be needed to make the required improvements.

A similarly major concern is how judges are portrayed in the media and their relationship with the government. The importance of both these issues is exemplified neatly by the Miller case, more notably the Daily Mail headline that ran after its conclusion.

headlines

The report explains:

“The relationship between the judiciary and the government was not helped by the furore around the case… [Lord Thomas said] that ‘the circuit judges were very concerned and wrote to the Lord Chancellor because litigants in person were coming and saying, ‘You’re an enemy of the people’.”

Though the media is free to criticise judges “there is a difference between criticism and abuse”, and in this case the headline was “unjustified”, the committee concludes.

Judges are unable to defend themselves in the wake of line-crossing media attention and instead the power to do so lies with the Lord Chancellor. At the time this was Liz Truss, who was slammed by lawyers in the wake of the headline going to print for doing, well, nothing.

Stressing how important it is the independence of the judiciary is protected by the Lord Chancellor (now David Lidington), the report says:

“Should members of the judiciary suffer such personal attacks in future, we expect any person holding the office of Lord Chancellor to take a proactive stance in defending them publicly, as they are unable to defend themselves.”

Read the House of Lords’ Constitution Committee report in full below:

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35 Comments

Not Amused

Judges are responsible for their relationship with the media.

They are the third pillar of state for goodness sake. They do not need to hide behind the skirts of parliament or the government. They can deal with this themselves.

We must stop turning everyone in to victims.

Anonymous

“They can deal with this themselves.”

Come on then brainiac. Let’s hear these amazing constructive suggestions on how they might do this ?

Did you skip public law entirely by the way ? Because, you know, your grasp seems consistently maladroit…

Not Amused

Judges might respond to the first and as far as I am aware, only, rude headline about judges in the last 10 years by ignoring it and getting on with the job. Those of us who are not young remember far worse headlines in the last century.

I do not want to live in a society whereby newspapers are censored to stop them being rude. That is a slippery slope and is fundamentally illiberal. So over focus on this story is a waste of time. Judges are not delicate creatures whose egos must be nurtured and cared for by the public.

Judges might deal with the other issues affecting the judiciary by working together to advise and help the Justice Secretary to improve matters. There is no other means of achieving change. Siding with the opposition to the government is categorically foolish – that is part of the problems of the Criminal Bar.

What is happening is that there is no public money. There has been no public money for a decade. We still borrow 58bn a year which we do not have. We pay 30bn in interest (note that capital is not repaid so that interest is just growing) which is a colossal annual waste. So stories like this and the faux outrage expressed beneath my comment are merely ways of lobbying for more public money – but there isn’t any. For what little there is, it seems to me that Judges would not be top of any list.

Part of the point of me being on this website is to help young people who want to be lawyers to think. Part of thinking well as a lawyer is consistency of thought. That is why Lord Sumption is so rightly praised. I therefore note how incongruous it is to have a story one day in which judges are presented as horrendous bullies akin to Mr Weinstein; and for the next to have an essentially infantilising story about how judges are victims.

I have written this reply so that young people might think about the points I have made. While I am unconcerned about your personal attacks on me; I do note that they are unhelpful and that such behaviour poisons public discourse.

Anonymous

It’s not censorship to suggest that the Daily Mail attack was revolting and shouldn’t have been published. It would be censorship to ban criticism of the judiciary. What the Mail did barely stopped short of inciting violence and ‘free speech’ isn’t a defence against criticism. What you’re really suggesting is that people should self censor and not criticise the papers for publishing disgusting and misleading headlines.

Not Amused

It is always censorship to suggest articles should not be published. You should not make incorrect statements.

What you want to say is that to your mind, sometimes censorship is justified. If you want to advance that argument then it is best to define the circumstances in which you think that censorship is justified. Investigate the current laws. Say where the line on censorship is currently drawn and then make a proposal for where the line should be moved to in future and explain the benefits of your proposed changes. You should then explain the negatives of your proposal and say why they are outweighed by the positives.

Anonymous

Defending the judiciary against attack by sections of the media is not the same as suggesting that critical articles against them should not be published. Disagreeing with someone is not tantamount to saying they are not entitled to their view. What judges and others wanted to see was the Lord Chancellor pointing out that the Supreme Court Justices were doing their constitutional duty by interpreting and applying the law in the Miller case, and that there was absolutely no reason to consider that they were applying their personal political views in reaching the judgment. The idea that such a defence would have amounted to censorship of newspapers is laughable. Politicians, including government ministers, take issue with the reporting of political issues all the time without any suggestion that by so doing they are stifling free speech.

Not Amused

“Defending the judiciary against attack by sections of the media is not the same as suggesting that critical articles against them should not be published”

That is true. But it was not what the previous commentator proposed, so I am at a loss to see why you have raised it.

Having the LC effectively castigate the Daily Mail for expressing an opinion is sinister and illiberal. I don’t think it’s wrong to suggest that is an over reaction and a form of censorship with which I am uncomfortable. As I understand it, the Daily Mail produces no end of offensive and absurd headlines. I read almost daily examples of silly, offensive and sometimes racist or sexist headlines in the Guardian. Is the LC to spend his or her days policing all of this?

It never ceases to depress me how easily people fall in to oppressive behaviour (always, of course, directed at those they dislike and not at those they do).

If all you are suggesting is that every time anyone criticises a judge the LC should pop up and mumble “they’re only doing their job” then I think that would just get boring; but it might perhaps be mildly comic for a time.

Anonymous

I raised it because you suggested that judges should ‘deal with’ media attacks of this kind by themselves (by staying silent) rather than being defended by the Lord Chancellor. And then explained that you think this because you “do not want to live in a society whereby newspapers are censored to stop them being rude.” I was pointing out that being defended by the Lord Chancellor (as suggested in the paper which the article above reports on) would not be tantamount to censorship.

Not Amused

“I was pointing out that being defended by the Lord Chancellor (as suggested in the paper which the article above reports on) would not be tantamount to censorship.”

I think there are circumstances where being defended by the LC could amount to censorship. Broadly I do not see the need or benefit.

Our judges always get on with their job. The Daily Mail can not effect or impact them. In contrast the LC can have a big impact on the Daily Mail. I think this issue really has much more to do with people being upset about Brexit rather than an honest concern for the feelings of judges (although if people are genuine then I would say that the feelings of judges are broadly irrelevant to public life and if necessary can be dealt with in private).

Anonymous

Even if you can imagine circumstances in which public comment from government ministers on the media would amount to censorship, the public comment that is being called for — defence of judges doing their job against unjustified personal attacks — clearly would not fall into this category. One of the articles complained of published biographical details of the Court of Appeal (including details of the Master of the Rolls’ sexuality) in such a way that was clearly intended to incite hostility (at least) against them. Incitement of hatred against individual judges is dangerous for the justice system and the rule of law, as well as for individual judges. It’s not a matter of hurt feelings, or Brexit-related point-scoring.

Anonymous

“It is always censorship to suggest articles should not be published. You should not make incorrect statements.”

So if the Mail wrote a story about you being a child molestor and put it on the front page you would say ‘yes, this definitely should have been published. I have no objection to the publication of this because otherwise I’m an evil censor’.

Not Amused

I will try again because it is important that young people try to understand this.

All instances of telling a newspaper not to publish an article are censorship. Most instances of castigating a news paper over an article are censorship. Very few human societies have no form of censorship. The important question is the degree of censorship that our society is willing to accept. I wrote this above to help people understand:

“What you want to say is that to your mind, sometimes censorship is justified. If you want to advance that argument then it is best to define the circumstances in which you think that censorship is justified. Investigate the current laws. Say where the line on censorship is currently drawn and then make a proposal for where the line should be moved to in future and explain the benefits of your proposed changes. You should then explain the negatives of your proposal and say why they are outweighed by the positives.”

I am highly conscious of the death of nuance in our public life. I have written lamenting that. We live in an intellectually shallow culture which believes solely in good and evil and that is both pathetic and divisive. It is essential that young people who want to be lawyers work hard to develop a sense of nuance – which is why I write here in order to help them. Being rude to me achieves nothing.

Anonymous

Thanks for the patronising post. I know perfectly well what I am saying thank you.

Here are two sentences:

“The journalist responsible for this article should have made the decision not to publish this because it is revolting and untrue.”

“This article should be illegal to write.”

The latter is clearly censorship. The former clearly is not if you have even the slightest grasp of nuance. Censorship as a word means preventing someone from saying something. Criticising someone for saying something does not prevent them from saying it. Therefore it is impossible for mere criticism to be censorship.

It has become popular for whingy right wingers like you to moan about censorship the second you are challenged on your views. This is a sad and anti-intellectual victim complex, and defies basic logic. If it is censorship for me to say a paper shouldn’t say something (rather than “shouldn’t be allowed to say something”) then it is also censorship for you to say that I shouldn’t say that the paper shouldn’t say something. And that’s really stupid. I’m still posting despite your insistence that I shouldn’t. You haven’t censored me.

It’s likely borne out of the right winger’s instinctive reaction to ban things they don’t like (see eg Thatcher and gay people). So you see us say we don’t like something and immediately assume we are also arguing to ban it or prevent it. That’s the only explanation I can come up with for your failure to parse the simplest of ideas.

Anonymous

Your post is ruder and more patronising than any of the other posters’. The assumption that your partial view is somehow objective truth that others should learn from would be offensive if it weren’t so embarrassing. And given that you have no idea who the other posters are, I’d give up trying to ‘educate’ them. Besides, if there is any ‘young person’ on here who gets their ‘education’ from trolls on a low-brow legal blog, they’re probably beyond hope.

Lots of idiots from the Canary on LC these days!

Because that would actually be Libel, dear boy!

Nowt going on in the Canary, are we?!

Anonymous

“You should not make incorrect statements” entails the view that such a statement should not have been published. Stop censoring people.

Anonymous

How interesting ? Wasn’t so long ago you were castigating Sumption for being rich, privileged and set in his ways because of this. Can’t recall the exact wording but you didn’t sound like a fan.

Do you actually think people just forget what you wrote ? Or do you just face the way the wind is blowing.

Stop reading the Daily Mail. It really isn’t helping !

Anonymous

“Part of the point of me being on this website is to help young people who want to be lawyers to think.”

Hahahahaha

Anonymous

Not Amused educates me, how NOT to be as a lawyer.

Anonymous

Anyone seen that T shirt – “The Daily Mail – Like spending 20 minutes in a mental institution”

They should add “Not Amused – Like conversing with one of the inmates”

Good grief. And drop the faux altruism woman – you’re fooling absolutely no-one.

Anonymous

You’re full of sh*t Not Hag Amused.

Anonymous

Judges are cnuts …

Anonymous

Headline still shocks me to this day

SingaporeSwing

Absolutely, quite uncalled for.

Pale stale male

I agree the headlines were inflamatory and uncalled for, but the suggestion that because Judges are unable to defend themselves in the wake of line-crossing media attention “the power to do so lies with the Lord Chancellor” is surely a novel one; there have been plenty of newspaper articles over the years that are critical of judges, but the LC does not wade in every time. As the expression “uncalled for” connotes, it was a matter of bad taste and judgment, not a constitutional outrage.

Anonymous

It’s difficult to see why anyone would want to go on the Bench now. The problem is not the pay: £200k is an awful lot of money, and barristers who have been earning “millions” presumably have managed to save some more. Rather, it is the working conditions. Not just the dilapidated, understaffed courts, where basic facilities like photocopying and IT are lacking, but the relentless workload, made even more onerous by the increasing number of litigants in person. One former High Court judge who retired early told me that he worked every evening and all weekend: up to 100 hours every week. Judges need more help (in the form of judicial assistants), and more time to write judgments and prepare for cases.

Anonymous

This is right. Top QCs, particularly in Commercial or Chancery work, have always taken massive pay cut on appointment to the High Court bench (it is more complex further down the hierarchy; people often sought those appointments because they had no pension provision and the judicial pension used to be amazing). But by the time anyone considers taking appointment at High Court level, they are usually sufficiently comfortable that they could retire and play golf for the rest of their days if they preferred. Pay is more or less a red herring. Status and conditions are the problem.

Anonymous

I completely agree that status and conditions are key, and that judicial pay is never going to match that in private practice. However, I have the impression from talking to a High Court judge that the fact that the pension provision is not what it was is a major concern for current and prospective judges.

Anonymous

Although if you look at p10 of the document above, it appears that pay/pensions benefits are more often cited as a reason for early departure by judges than conditions and workload…

Anonymous

Judging is a thankless task for a lot of the cases before the court.

Under resourced and unappreciated.

Anonymous

Is it possible for the judges to have the Daily Mail’s Dacre frog-marched to court in handcuffs to answer for contempt?

If not, I can still dream.

Trumpenkrieg

Did those headlines really interfere with the course of justice in that particular case?

Anonymous

When I was a lad in the early 70’s about the only criticism of Judges was in Private Eye – mainstream media not a peep.

There is nothing wrong with robust criticism.

Do we live in England, or in North Korea?!

I fully support the right of the Daily Mail to call judges “Enemies of the People” … just as the right of the legal profession’s favourite the Guardian, to use its front page to pretend that Martin McGuinness had received a Nobel Peace Prize and also had never killed a single person during his life, and that when he died, he received a full Irish state funeral in the Co-Cathedral in Dublin with full military honours as a retired Irish general and a former Irish PM, and was buried in Glasnevin, near Dublin … or the right of the Socialist Worker and the Morning Star to use their front pages TODAY to hail Lenin, Trotsky and Stalin as great leaders following the Marxist tradition of Marx and Engels, that they were great saviours of humanity.

It is called the Freedom of the Press. If members of the English legal profession don’t like this fact, then they are perfectly free to find legal employment in Hong Kong or Singapore!

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