Tuesday, 30 July 2013

Murmuring Judges: Should a High Court Judge run a Pressure group?

 Last week’s Daily Telegraph readers were warned that the decline of marriage has led to family breakdown in an article that took to task recent research findings by the Institute for Fiscal Studies.   No surprise there, nor that the piece came from the Marriage Foundation, a charity whose mission is to be “a national champion for marriage”. More surprising is that the comments are attributed to High Court Judge, Sir Paul Coleridge, the Foundation’s founder and chairman. Last year, following a complaint from a member of the public (me), Sir Paul agreed with his superiors that a lower profile role within the organisation would be more appropriate for a serving judicial office holder.  

I originally wrote to the Office for Judicial Complaints after   Sir Paul spoke about the Foundation on the Today programme last year. I have no strong animus against marriage nor against Sir Paul – I have never met him- and I am sure that he is acting out of the best of motives. However, I cannot see how it is possible to be heading up a high profile campaigning body while continuing to serve as a senior judge. After all, according to their terms and conditions, High Court Judges should not in any capacity engage in any activity which might undermine, or be reasonably thought to undermine their judicial independence or impartiality. As well as foregoing political activity, Judges must be “on their guard against circumstances arising in which their involvement in any outside activity might be seen to cast doubt on their judicial impartiality or conflict with their judicial office.” The Guide to Judicial Conduct cautions against expressing views out of court that give rise to issues of perceived bias or prejudgement in cases that later come before the judge. “Care” it says “should be taken not to cause the public to associate a judge with a particular organisation group or cause. Participation {in public debate} should not be in circumstances which may give rise to a perception of partiality towards the organisation, group or cause involved or to a lack of even handedness.” 
In the context of family cases, I wondered how a judge can retain an impartial approach to decisions about divorce and the care of children if he is simultaneously running a campaign to promote marriage, which a priori sees cohabiting or other forms of family organisation as less worthy.

After several months the Lord Chancellor and President of the Queen’s Bench Division expressed themselves satisfied that Sir Paul’s involvement with the Foundation was not incompatible with his role as a High Court Judge. Nor did they consider that his appearance on the Today programme amounted to misconduct. They were concerned about it however because “there was in their view a question as to the degree to which a judge should provide public support for such an organisation by speaking out publicly”. I was told that Sir Paul had agreed “in relation to the Marriage Foundation, to take a back stage role from now on”.

Notwithstanding this agreement, within a month Sir Paul was interviewed in The Times where he opined that the government’s plans for gay marriage were “the wrong policy” and that ministers were wasting effort   on an issue that affects “0.1 per cent” of the population. Somewhat surprised that giving a controversial interview to a national newspaper was seen to be consistent with a backstage role, I took the matter up with the Judicial Appointments and Conduct Ombudsman. Its role is ostensibly limited to reviewing the way complaints are dealt with rather than looking afresh at the merits of the case. Nevertheless while  specific concerns about  the handling of my  complaint were not upheld , the Ombudsman’s report and that of his investigator, which arrived last month, showed they had been considered with a great deal of care- rather more so indeed  than  had  the original complaint by the Office for Judicial Complaints.

None the less, there remains a considerable grey area in terms of what judges are or are not allowed to do in terms of promoting causes or campaigning for change. In terms of regulating what judges do, I was surprised to learn from the Ombudsman’s office that the Guide to Judicial Conduct does not form part of the judicial disciplinary system and “that though it is a useful reference, it does not define misconduct and will not form the basis of any finding of personal misconduct.” This seems odd given the statement on the judiciary website that “all judicial office-holders agree to adhere to a strict code of conduct.” It is in fact neither strict in terms of its demands nor its enforceability.  Many judges would no doubt argue that   the Guide was written only to assist them and certainly not to assist members of the public in making complaints of misconduct. Others, such as one of those involved in considering my complaint would take the view that “the guide to judicial conduct is not an authority for the proposition that it is for a judge to decide what is appropriate”. But if not, what exactly is it?

Digging too deeply into these questions might be seen to risk infringing the independence of the judiciary. But finding the right level and modes of transparency and accountability for judges is important. Does independence of the judiciary mean that judges are independent of their superiors and can ignore advice provided to them and the agreements they have made with them?   

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