Interviews · Qualities Required

The Law and Democracy

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I do accept that the size of the photographs may tell their own story, but in the spirit of investigative journalism I am sure Mr Paul Dacre (in the left corner – the mere thought of which is probably giving him collywobbles) will appreciate the discrepancy.

Mr Dacre thinks that the way to make it clear that he dislike Eady J’s Judgments is to say so in public.

Others – me included – think that if a Judgment is wrong, the way to deal with it is to appeal. Several of them have said so very ably and I am not rehearsing that argument. Please see here and here.

What, I hear you cry, does this have to do with obtaining a pupillage? Well, quite a bit actually. I suspect that a number of Chambers ask interview questions that are intended to reveal whether the applicant understands the ethics of our profession and how they play out in difficult circumstances. And if they don’t, they should. This issue is about the rule of law.

Never mind that the Judge can’t answer back: that is simply a point about being rude and unfair. The rule of law provides that there is one rule for everyone – prince or pauper, businessman or bankrupt (nowadays sometimes the same thing). Yet only newspaper editors have the sort of access which Mr Dacre is using – oh happy irony – to make points about privacy and access to justice.

What’s more, in seeking to use a non-legal route to argue his legal point, Mr Dacre is taking advantage of his almost uniquely privileged position in order to pressurise Judges. Note, he does not seek a legal victory by doing this. He might like one but he knows full well that this isn’t how you get it. Nor does he seek to change the law. That is a political campaign which he may want to mount but this isn’t it. This is a direct attack on a Judge for daring to decide a case in a way Mr Dacre does not like, but according to the law and the judicial oath.

People who make such attacks are not democrats. They do not recognise their own position as being equal to yours and mine. They believe that their own causes and interests should be preferred to the causes and interests of others, regardless of support, heeding only their own ability to make a loud noise. In a further irony Mr Dacre says that the Judgments have created a new law, which the Government does not have the courage to publicly debate. But, if that were right, he could successfully appeal. The co-opting of the language of democracy for a deeply non-democratic end is simultaneously worrying and pleasing. Worrying for the obvious reasons, logical and moral. Pleasing because it suggests that Mr Dacre needs to co-opt democracy to feel good about himself.

Our job is to defend the law. The law has to reflect what people will do. That is Parliament’s job, and perhaps a small part of the job of the Appellate Courts. The law must be understandable. That is the Court’s job and our job. The law must be honest – it must not discriminate; it must be applied without fear or favour, to everyman as if he were anyman (apologies for masculine usage, but you know it makes sense). That is our job. If a Judge is wrong then the route to putting him right lies through the Courts. If, according to the Court of Appeal, he is not wrong then it may be that a public campaign is necessary. But such a campaign is only worthy of consideration if it deals with the issues. When it transparently does not, then we are entitled to infer that the campaigner knows fine well that he has no real argument and that the campaign is no more than personal desire dressed up as principle.

In a law-respecting society (rather than the law-abiding one the Daily Mail wishes we had), public figures would not demean themselves or the law in this way. However, in this as in all else those at the top tend to give the lead. In the case of the UK David Blunkett has had an unhappy prominence. Decisions he did not like were the focus for his personal criticism, regardless of the legality of decisions which, it might be thought, he as a Cabinet Minister would have been keen to uphold. These things percolate down, even as far as the papers.

This is a critical point for the profession and its would-be members. Can I refer you to a very good lecture, given some 5 years ago now by Justice Michael Kirby of Australia? He said:

“Whatever its origin, “judge-bashing” is dangerous. It threatens public confidence in the independence of the judiciary. It weakens faith in the decisions of judges. Worst of all, judge-bashing may bully many judges back to formalism. Adhering to extreme judicial restraint tends to fend off the political firestorms that restatements of the law of any controversy are likely to whip up.”

These are serious issues about our profession and the way it affects everybody’s life. You don’t have to agree with the Judge. He may well be wrong (almost certainly if he decides against my case). But respect for the law, which is the same as respect for democracy, dictates the form and the route of that objection. Even, one hopes, for the Daily Mail.

And for applicants for pupillage, this may be a topic worth having a view upon.

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4 thoughts on “The Law and Democracy

  1. Well put Simon. Eady J is only applying Campbell v. MGN. Perhaps he doesn’t always get the balance spot on but he certainly isn’t indulging in the law making that Dacre accuses him of. Every evening I walk back along Fetter Lane past the statue of John Wilkes and I always think of him asking “What did you do today to make me feel proud?” Not that that’s the sort of thing he’d have asked. He’d probably be saying to Moseley “Who’s turn is it to pay for this lot?”

  2. Hang on – I didn’t think Paul Dacre, the Daily Mail or the owners of the Mail were parties to the judgment about which he is complaining? How can they possibly appeal it?

    Isn’t it also a bit of a stretch to say that it is wrong to discuss/criticise/praise/attack decisions? If this were the case then there are a fair few law lecturers/professors around the country who would be out of a job!

    I would hope that our judiciary – almost wholly trained at the Bar – would have a strong enough sense of independence to be able to ignore the ramblings of an embittered newspaper hack.

    That said, I think I agree with you (and the silks who wrote to the Times) in disapproving strongly of the distasteful attack on Eady J personally, as I do of all attempts to “play the man not the ball”.

  3. he’s the editor of the daily male fgs – it’s his raison d’etre to attack any halfway sensible decision by the courts. i imagine eady j would be weeping into his breakfast cereal if the male was NOT enraged by his outrageous decision to apply the law as decided by parliament and as interpreted by hl/ca. water and ducks’ backs anyone?

    these unelected judges! not like the democratically appointed mr dacre.
    i think it’s nice that there’s nothing quite like an ignorant/disingenuous (take yer pick) stream of vitriol from the press to encourage the legal profession to get behind someone who seems to be doing their job the right way.

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