Why should politicians not criticise judges?

ICCL LogoIn a report published last night, the Irish Council for Civil Liberties (ICCL), a leading and well-respected independent organisation dedicated to protecting and promoting human rights, called for the introduction of a Judicial Council to strengthen the accountability of the Irish judiciary (see RTÉ | Irish Examiner | Irish Independent (Dearbhail McDonald) | Irish Times (here and here)). Tanya Ward, Senior Research and Policy Officer with the ICCL, undertook a year of independent and original research, including in-depth interviews with senior members of the Irish judiciary, to produce Justice Matters. Independence, Accountability and the Irish Judiciary (summary (pdf); Part I (pdf); Part II (pdf)).

It is a hugely important development, and very welcome. For example, a major finding from the research is that complaints against judges have not been processed expeditiously, and the Government’s handling of the issue of judicial complaints is criticised; so the report’s central recommendation is that the State finally establish a long-overdue Judicial Council, to hold judges to account where necessary whilst also respecting the constitutionally protected independence of the judiciary; and it also recommends a judicial Code of Ethics and greater transparency in the process of appointing judges.

Two of Ward’s suggestions relate to freedom of expression, but one is as welcome as the other is not. First, in the Executive Summary ((pdf), she writes:

  • In the main, the report finds there are sufficient legal provisions protecting the judiciary from external pressure when adjudicating. A particular weakness relates to the law of contempt, which protects the courts from prejudicial or adverse behaviour. As this area of law is largely judge-made, difficulties have arisen over a lack of clarity.
  • It is unsurprising, therefore, that she echoes the Law Reform Commission‘s call for reform of the law of contempt (see the LRC’s 1991 Paper and 1994 Report on Contempt). This is all to the good; the law on contempt of court is a mess, not only as it relates to control of the courtroom, but also as it relates to publications about the legal process. Inclarity as to legal standards of acceptable publication leads to journalistic self-censorship; legislative clarity can only ensure greater public debate about the legal process. However, Ward goes further, and it is in her additional related recommendation that some difficulty might lie. In the Executive Summary, she writes:

  • Public criticism of the courts is compatible with and advances democratic values. Rules in the Dáil stipulate circumstances where a member can raise an issue of public importance. As regards conduct outside the Oireachtas, the Code of Ethics for Officers Holders and other members does not explicitly prevent politicians from attempting to influence how the judiciary interprets the Constitution and laws.
  • In order to reduce the risk of future public disagreements between politicians and the judiciary over the implementation of law, the report recommends that the Code should specifically preclude politicians from making direct statements outside of the Oireachtas that might appear to undermine the independence of the judiciary.
  • Having given examples of ministerial and political criticism of the judges, in the Report (part I, p 37) she argues:

    The Code of Ethics for Officer Holders and other members of the Oireachtas could clearly stipulate that elected representatives cannot seek to influence the judiciary in this way. In this author’s view, this measure is necessary as attempts to influence the judiciary on the part of politicians and government ministers is qualitatively different from similar remarks made by academics, non-governmental organisations (NGOs) and other media commentators, given the Government’s role appointing judges.

    I find this recommendation troubling. As I say in the title, why should politicians not criticise judges? She accepts that criticism of the judiciary is, per se, legitimate in a democratic society; I couldn’t agree more with her observation (quoted above) that “public criticism of the courts is compatible with and advances democratic values”; and she iterates academics (thanks!), ngos, and the media, as legitimate sources of such criticism. But, she says, politicans are qualitatively different, given their role in appointing judges. The point needs greater fleshing out. It is an argument, at best, for political self-restraint (and I agree that many of the examples that she gives should have exercised better judgment and bitten their tongues), not for censorship.

    Politicians have many other roles too, as public representatives, responsive to public unease about social issues. Politicians legitimately and routinely speak out about all manner of societal developments, even where they would be decision-makers on those or similar issues. It is the nature of the job. More, it is often the only way in which such points can have adequate public ventilation. Restrictions on political speech require the highest justification; and thin judicial skins do not reach that level. Whilst I therefore welcome much of the Report, and hope that those welcome aspects are acted upon as quickly as possible, I nevertheless devoutly wish that this aspect is not.

    Update: the ICCL report is now available here.