The rule of law and press freedom – Lawrence McNamara

When some media coverage of last week’s High Court decision pitched judges as enemies or opponents of the people, the Lord Chancellor’s initial silence attracted, hour by hour, a louder chorus of demands that she speak up in defence of the judiciary.  

Breaking cover after more than a day, the Lord Chancellor’s very short statement was released, including, “The independence of the judiciary is the foundation upon which our rule of law is built.”

The Prime Minister on Sunday said, “I believe in and value the independence of our judiciary. I also value the freedom of our press. I think these both underpin our democracy and are important.”

The Prime Minister is right to value and protect press freedom. But asserting the importance of press freedom does not mean that everything said in the press is valuable, accurate or should be accepted without question. On the contrary, where press criticisms tend to undermine the independence of the judiciary and respect for the rule of law then the substance of the positions in the press should be addressed. The coverage in recent days has included the labelling of judges as enemies or opponents of the people, has berated and belittled the claimants, has targeted one judge on the grounds of sexuality and another on the grounds of professional association, and imputed without any evidence personal and political motives to the reasoning.

Addressing the substance of the position taken by a newspaper is not an attack on press freedom.  Similarly, addressing the substance of a judgment made by a court is not an attack on judicial independence.  Freedom of speech works for both: it is about engagement with ideas and arguments.

The press should not be prevented from saying what they have said. Happily, we no longer have the offence of contempt by ‘scandalising the court’, which criminalises some forms of criticism of judges. But what they have said should be subjected to scrutiny.

When the press has attacked judges and, in some instances, argued that personal and improper motivations underpinned the decisions made, it is inappropriate for judges to speak out and defend themselves, for that would involve them in politics. However, the Lord Chancellor has a duty under the Constitutional Reform Act and her oath of office requires her to “respect the rule of law” and “defend the independence of the judiciary.”

In fulfilling that duty, the Lord Chancellor should address the substance of the press coverage, and the way that the coverage raises issues about – and undermines and attacks – the rule of law and judicial independence.  She has not done so yet.

Lawrence McNamara is Deputy Director and Senior Research Fellow at the Bingham Centre for the Rule of Law.