If judges don’t want to get involved in politics, maybe they should stop giving speeches

Where should judges fit into public life? It's an age-old question but one that has been more pressing since the 1960s thanks to, among other factors, a more activist bench, the expansion of judicial review, entry into the Common Market and the Human Rights Act.

It's a theme Jonathan Sumption QC (pictured) took on in a speech this week, which mounts a broad critique of the willingness of some judges to step beyond their role of applying the law as set down by Parliament to interfere with underlying policy decisions. As you'd expect from one of our most celebrated advocates, Sumption makes a good case, rightly noting the inherent difficulty of separating the determination of a policy's lawfulness (which judges are supposed to be concerned with) from its merits (which they are not).

It is also inarguable that judges have considerable tools to frustrate policy decisions with which they do not agree, among them creative interpretation of what Parliament intended or imaginatively deciding what factors should be taken into consideration. As such, in a number of fields, particularly in public law and human rights appeals, and judicial review cases that turn on common law grounds, judges have not infrequently strayed into "‘the balance sheet of policy advantages and disadvantages'".

Sumption argues that the primary reason for the willingness of judges to interfere politically is the declining reputation of Parliament over the last 50 years. His broad solution is for judges to apply a more consistent approach across differing areas of law but, more fundamentally, to give a greater margin of allowance for politicians to determine policy before stepping in. He refers to "deference", stating:

"'Deference'...has unfortunate overtones of forelock-tugging cravenness. But it is a perfectly acceptable word, so long as one remembers that the judge is not deferring to the minister. He is deferring to the constitutional separation of powers which has made the minister the decision-maker, and not him."

Yet persuasive as Sumption's case for judicial restraint is - he writes with a better sense of the practical dynamics of politics than some at the bench - you wonder how much it can fully reflect the wider realities of the position judges hold in society.

There has for years been an internal debate between 'progressive' and conservative wings of the judiciary, the former being more enamoured of the kind of creative intervention that sends shivers down the spine of the latter. (We certainly now know which constituency Sumption will represent when he takes up his Supreme Court appointment).

To a degree, that tension can never be resolved and probably shouldn't. Much as some would like to style law as being immutable, a code of rules based on shifting concepts such as what is 'fair', 'reasonable, 'right-thinking' or 'necessary in a democratic process', will never be fixed. Indeed, it is inherently linked to the morals and sentiments of the day.

And while it is easy to have sympathy for those arguing that judges should tread carefully when stepping into areas of policy, the school of thought that tries to style the judiciary as comprising neutral figures entirely divorced from politics is scarcely credible.

True, the 20th century saw a notable decline in the prominence of judges with party-political affiliations and Government influence in judicial appointments was reduced during the last Labour Government. But if we are proud of the fact that judges aren't political in a partisan sense, it is setting the bar very low. (And recent experience arguably suggests that the more you weaken the bonds between Government and the courts, the more, not less, likely judges are to stray into political realms).

To believe that the general attitudes and views on what constitutes the public interest among the senior judiciary - a homogenous group still drawn from a narrow section of society - do not have a substantial political impact would be naive. Does anyone seriously think your background will not have a material impact on such considerations?

If the concern regarding the impact of judicial elitism is often highlighted, what is less discussed is the suspicion that judges are rather more enamoured of their role in public life than they generally concede.

Take the convention of judges giving public speeches. In any year, it's not unusual to see a dozen or so speeches from senior judges. These are often given to opinion-formers and other members of the great and good and the media are often invited. What is the purpose of these speeches if not to have an impact on policy?

You could maintain that this is not an issue if such speeches stuck to narrowly technical or legalistic topics - certainly it would mitigate the risk of unwashed hacks turning up - though in reality it would be difficult to avoid a political dimension to any speech touching on justice, administrative law or human rights.

And in many cases judges stray way outside narrow legal confines to tackle far broader issues. Last month alone saw Baroness Hale, the Lord Chief Justice, Mr Justice Vos and the Master of the Rolls give speeches covering areas as diverse as lack of judicial diversity, the economic contribution of the courts, the need for court investment and the historic role of Parliament in the legal process.

Certainly, we have come a long way since 1955 when the Lord Chancellor Lord Kilmuir denied a BBC request for judicial co-operation with a series of broadcasts about great judges of the past by noting: "The overriding consideration, in the opinion of myself and my colleagues, is the importance of keeping the judiciary in this country insulated from the controversies of the day. So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance he makes in public, except in the course of... his judicial duties, must necessarily bring him within the focus of criticism."

Patrician and old-fashioned sentiments, yes. Illogical, no. But this convention started to break down by the 1970s - partly due to prominent speeches given by Scarman and Denning. In 1987, the Lord Chancellor Lord Mackay ended the convention of judges being expected to seek guidance from the Lord Chancellor's Department before making public utterances or speaking to the media. Now such speeches are common and media participation, if less so, is a semi-regular occurence, as witnessed by the BBC's hour-long documentary on the Supreme Court last year. As I try to get this blog finished, I'm interrupted by a notice from the Judicial Press Office alerting me to the latest speech by Lord Justice Jackson.

The truth rarely acknowledged is that judges rather like their prominent role in public life and the fact that names such as Denning, Steyn and Bingham carry some resonance in policy debate. Personally, I have no problem with judges participating in such a way. It seems to reflect the basic reality that they are not infallible guardians of wisdom but people and members of society, with all that entails.

There is one reservation. You can make a good case that judges should refrain from speechifying beyond their judgments. You can also make a good case to say they should be more open and generally transparent. But currently we have an ambiguous situation in which some judges are rather fond of broadcasting their views on their own terms while providing limited access to questions from the media. In short, they seem to want to have their policy-infused cake and eat it. If judges want to make extra judicial-pronouncements, they may ultimately come under more pressure to make themselves available for cross-examination.

Still, the problem may rather depressingly sort itself out. As judges have grown more eager to speak out on issues of the day, the media has become less willing to listen. There are now only two journalists working in newspapers who meaningfully specialise in maintaining a contact base among the senior judiciary, and the general media has widely withdrawn from reporting the courts, unless a celebrity or bloody crime is involved. Who can blame them? It's not as if the public wants to pay to read this reporting.

An early - and rather sad - foretaste of what will happen was the recent case of the judge who tried get to his local paper to send a reporter to court as he felt he had something important to say and was disappointed there was no one there to report it. Having spent years trying to avoid the media, judges may find they miss it when it's gone.

• To read the full speech, see: Judicial and political decision-making - the uncertain boundary