On 26 August 2014, Lord Neuberger of Abbotsbury PSC delivered a speech entitled The Third and Fourth Estates: Judges, Journalists and Open Justice at the Hong Kong Foreign Correspondents’ Club. It can be viewed here and despite the seriousness of the issues he debated, Lord Neuberger nevertheless charmed and humoured his audience during the course of his luncheon address. Genuinely enforceable rights under the rule of law – central to a civilised society – accessible by everyone remained at the heart of his Lordship’s thoughts. “Rights which are unenforceable are as bad as no rights at all,” he said and “the rule of law also requires the honest, fair, efficient and open dispensation of justice,” he explained further. Lord Neuberger made no secret of his view that for the rule of law to prevail, judges must not only be independent, honest, fair, and competent but the public must also perceive them as having these qualities. He said that it was obvious that judicial jobbery fatally undermined the rule of law.
His Lordship moreover clarified that “an incompetent or unfair judge is almost as much of a contradiction in terms as a dishonest judge” and emphasised that the judiciary’s duty of fairness – i.e. the equal application of the law regardless of age, class, gender etc. – is well reflected in lady justice being portrayed as blind in western art. Stressing that the separation of powers between the legislature, the executive and the judiciary (which in addition to being impartial must also be independent from the executive’s meddling, influence and interference) is crucial to the rule of law, Lord Neuberger neatly explained that:
Those who make the law should not be involved with interpreting or carrying it out; those who carry the law out should not make it or interpret it; and those who interpret the law should not make it or it or put it into effect.
Relying on Alexander Hamilton’s analysis regarding the judiciary’s vulnerability vis-à-vis the other two branches of the state, Lord Neuberger mentioned Hitler and Mussolini, both of whom rose to power through the ballot box, to highlight the potential pitfalls of an unchecked democracy. His Lordship argued that the courts served as a useful force to counter politicians’ expedient choices and short termism – judges, he said were unconcerned with being popular with the electorate and were thus empowered to make hard decisions. But he urged his colleagues and subordinates to use their power “diffidently and cautiously”.
Lord Neuberger, an outstanding common law judge who is a global role model and also serves as a non-permanent judge of the Hong Kong Court of Final Appeal, remained certain that judges did not see themselves aligned with the government. His Lordship stressed that the desire for total independence in the Internet age has caused UK judges to voice concern that their email addresses end with the suffix “.gov.uk” (indeed, his own court has only recently been liberated; after a long battle, its url finally reads http://www.supremecourt.uk/ rather than http://www.supremecourt.gov.uk/).
Lord Neuberger said that words are “slippery” things. He questioned the People’s Republic of China’s suggestion that judges “administrate” the Special Administrative Region of Hong Kong and re-contextualised this slipperiness to demonstrate his own dilemma. For example, “administration” could refer to the present UK government – or “Mr Cameron’s administration” – which he said did not include him and his learned colleagues who had pledged to “administer justice without fear or favour.” Explaining that in light of the doctrine of separation of powers it was inappropriate for judges to take sides in political matters, Lord Neuberger advised us that “the price of liberty is eternal vigilance”. In particular, he complained that since 1996 when he was elevated to judicial office:
A senior Cabinet minister, the Home Secretary, has sometimes made inappropriate remarks about a judicial decision, and the judiciary always makes it very clear that the remarks should not have been made and are inconsistent with judicial independence. This is very sensible: any threat to judicial independence has to be headed off at the pass.
Lord Neuberger explained that judges show their patriotism “by an irrevocable and undiluted commitment to the rule of law” which means that they perform their duties properly but he reiterated that doing justice is only one side of the coin because it is equally “important that judges are seen to be resolving disputes independently, fearlessly, honestly, fairly and in accordance with the law, and as efficiently and openly as possible.” This analysis dovetailed nicely into Lord Neuberger’s argument about open justice being inherently critical to the rule of law – i.e. in order to inspire society’s confidence, judicial work must be fully exposed to proper public scrutiny.
Courts sitting in private cause accountability to suffer and Lord Neuberger clarified that unless proceedings were transparent “judges will start to get into bad habits if the public and the press are excluded from their courts.” Seeing is believing – the ability to observe the judiciary at work is the key – for Lord Neuberger and his Lordship, who advocates keeping secrecy in proceedings to an absolute minimum, echoed Louis D Brandeis’s wisdom that “sunlight, it has been said, is the best of disinfectants.”
To be sure, the UK’s senior most judge is equally fanatical about technology as he is about open justice and in his speech Lord Neuberger proudly told his audience all about the UK Supreme Court’s filming and streaming (in real time) of hearings and the Court of Appeal’s intention to follow suit.
Lord Neuberger drew international parallels as regards the televisation of legal proceedings – which “is merely the modern extension of enabling the public to enter the courts physically” he said. Yet he remained alive to the issues (which do not apply to appeals before him and his colleagues) surrounding intimidation of witnesses and juries, and about witnesses and lawyers playing to the gallery. His Lordship remarked that:
Aware of the hardships of extracting the operative part of a judgment, Lord Neuberger, who himself predominantly practised in land law, considered it a duty of courts to provide succinctly written summaries of judgments because at times reading older judgments he finds himself “losing the will to live” (which is all more disturbing where the judgment concerned was given by him!). So he thought that it is only right that the public should be provided a clear summary of the essential reasoning. He was satisfied that his court was setting a high standard by providing a brief summary in every case and giving an even shorter televised oral judgment.
But Lord Neuberger said that ultimately even lawyers relied on the press for legal matters and did not rely on the primary sources provided by the courts for information about legal cases. In this regard, adopting the expression about the media – “the Fourth Estate” – coined by Edmund Burke, the apex judge opined that:
The media, and perhaps particularly the written media, have a very important function in relation to the judiciary and therefore to the rule of law. The media play an essential part in ensuring open justice by reporting to the public what goes on in court and what judges and juries have decided. The media also provide a vital forum for comments and discussion about such matters. Open justice involves the public and the media understanding what goes on in court and what judges have decided.
It is clear that Lord Neuberger desires a dialogue between the judiciary and the public and expects the media, a vital part of any democratic society, to be the driving force behind bringing this dialogue about. He therefore urged journalists to report fearlessly, despite whatever discomfort it might cause the judiciary. Denouncing misreporting and propaganda but upholding the media’s right to criticise judges and campaign to bring about changes in the law, he also elaborated that like the privileges of judgeship the privileges associated with freedom of expression should not be abused because:
It is one thing to disagree with a judgment and to fight to change its effect. It is quite another thing to misstate what was said in the judgment. Truth is every bit as precious a commodity as fearlessness.
Alive to the controversial divide between freedom of expression and the right to privacy, Lord Neuberger wrapped his speech up with a couple of thoughts on privacy and freedom of the press. He said that in a good deal of cases the right to privacy is not actually a separate right; rather, it is a facet of freedom of expression. Equally, the Internet age – where things are happening really fast and misrepresentation and fraud are rife – gives his Lordship cause to be concerned that the “law on privacy, indeed, the law relating to communications generally, may have to be reconsidered” because unenforceable laws undermine the rule of law and therefore “there is no doubt that these technological developments give rise to enormous challenges for people involved in the law and people involved in the media.”
In Lord Neuberger’s final analysis, judges and journalists have quite a lot in common and he reiterated that:
- Because of two fundamental principles, the rule of law and freedom of expression, they each are accorded important privileges in the interest of society as a whole
- At the present time, each of these privileges are as important as they ever were, because of the need to hold the domestically increasingly mighty executive arm of government to account.
- Each of these privileges carry concomitant responsibilities which judges and journalists should never forget.
- With the remarkable recent developments in the electronic world, the weight of these responsibilities is greater than it ever has been.