Several dimensions of moral courage are required from members of the judiciary, says the President of the Supreme Court of the United Kingdom, Lady Hale.
Delivering the Worcester Lecture 2019 at Worcester Cathedral on 21 February, Lady Hale spoke on "Moral Courage in the Law".
She said the first dimension was the courage to stand up to the media, who may or may not be reflecting general public opinion.
"The media can react strongly and personally against those whom they perceive to be acting against the media's interests," she said, giving the example of the case PJS v News Group Newspapers Ltd [2016] UKSC 26. In that case a majority of the Supreme Court upheld the grant of an interim injunction to prohibit the publication of the identity of a married person caught up in a sex scandal.
"We were ridiculed - I was reportedly 'known for my radical liberal ideas' and also known as Ms Diversity (neither, apparently, a good thing) - while the dissenter was praised. Ironically, despite this, the newspaper settled the case, agreed to pay damages and to maintain the anonymity of everyone involved [2016] EWHC 2770 (QB)."
Perhaps fortunately, Lady Hale said, most senior judges do not engage with social media or the tabloid press.
"That may or may not be a good thing, but it does mean that we can - and should - ignore or brush off such personal taunts."
Threats to the rule of law
However, the rule of law may be put at risk if the media go too far, she said, with the most obvious example being the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5: Could the government rely on the royal prerogative to trigger the process of leaving the EU or did they need the sanction of an Act of Parliament?
When the three Court of Appeal judges handed down judgment against the government, the Daily Mail published their photos over the banner headline "Enemies of the People: Fury over 'out of touch' Judges who defy 17.4 million Brexit voters and could trigger constitutional crisis".
"But then the press caravan moved on – to the Supreme Court where, for the first time in living memory, all 11 then serving Justices sat on the panel. Was taking this unusual course simply a wise way of protecting the court from an accusation that the result might have been different had a different panel been selected? Or was that too succumbing to media pressure? At least, as Sales LJ put it, the 11 of us offered ‘a more diffuse target’," Lady Hales asked.
"But this did not stop the Daily Mail from singling out four Justices for their alleged European links and sympathies – describing Lord Reed, for example, as ‘a Brussels man to his fingertips’.
"How wrong they can be: two of the four alleged Europhiles dissented from our decision to uphold the Divisional Court by a majority of eight to three. But the Daily Mail’s response to our decision was very clever. They published the same size pictures of the three dissenters under the banner headline ‘Champions of the People’."
Curiously, what the public and the media may not have appreciated. Lady Hale said, was that the basic principle we were upholding had been established during the constitutional struggles of 17th century, when Parliament and some of the Judges were fighting to establish the ascendancy of Parliament and the rule of law over the powers of the executive – "in those days the King rather than the Prime Minister and the cabinet, but the principle is the same. Those were the days when the Judges really did have to display moral courage in standing up to the government."
Standing up to government
These days, Lady Hale said, High Court Judges hold office quamdiu se bene gesserint and not during Her Majesty’s pleasure, so we are not so easy to sack. "But we still have on occasions to stand up to government in ways that may not be popular with Ministers and civil servants."
... and others
The media, government and Parliament are not the only powers in the land, she said.
"There are powerful interest groups of many sorts. Obviously big business is one. Trade Unions are another. It is hard to think that a case would be decided on the basis that one party was more powerful than the other. But we all have conscious or unconscious sympathies for one side rather than the other which we do have to do our best to recognise and to conquer.
"A well-known example is personal injury actions – there have always been judges who are more sympathetic to claimants who have been injured at work or in a road traffic accident and other judges who are more sympathetic to the insurance companies fighting the claim.
"Another example could be employment cases – some judges may be more sympathetic to the claims of employees against their employers and others may be more sympathetic to the employers. We need, therefore, the moral courage to recognise and stand up to our own prejudices, preconceptions and predispositions – and the first step is recognising that we may have them."