WHEN THE LAW IS AN ASS
The media: Paul Johnson
on how the judges dashed their wigs
IT IS hard to recall an occasion when a powerful group in society got such a generally bad press as the legal profession, or more specifically the judges, received last week, when the news broke that they were proposing to suspend their court sittings in order to hold a meeting about the Lord Chancellor's Green Papers. It was bad luck of course — or perhaps brilliant timing on the Government's part — that Norman Fowler's abrupt announce- ment that he was scrapping the long- discredited Dock Labour Scheme allowed commentators to draw the comparison between the restrictive practices of dockers and barristers. But then why did the judges, led by those two very able men, Lord Lane and Lord Donaldson, bury themselves still further in the trap by organising what was obviously going to be called a strike?
The odd thing was that, until last week, the lawyers had been doing rather well in putting their case. They had raised the money to lay on Saatchi & Saatchi and a good deal of discreet propaganda had been quietly circulated to the influential. They had produced an excellent defensive dos- sier, Justice in Danger. They had contrived to get into the quality papers a number of well-argued pieces by such persuasive advocates as Lord Alexander QC (yes: but why does he feel it necessary to use bow-wow phrases like 'inadequate remun- eration' when he means 'low pay'?). In Desmond Fennell QC they have a mild- mannered and plausible spokesman whose television appearances invariably do his cause some good, or at any rate no harm. Granted the intrinsic difficulty of their position — they are, after all, defending a restrictive privilege which people outside their profession find incomprehensible — they were giving the Government a hard time and there was even some talk, among the cabinet's weaker sisters, of beating a retreat.
It is always instructive to note when an exercise in persuasion begins to go wrong. It usually starts with an exaggeration, an uncalled-for expression or an attempt to bowl a fast one. In the House of Lords debate on Friday 7 March judges were guilty of all three. Parliamentary debates
on a Friday, unless they end early, are rarely well reported in the press. This particular debate was presented on Satur- day as a considerable victory for the legal profession. In fact it was no such thing. Writing a considered article for the Obser- ver the following day, Laurence Marks was able to show that it was the Lord Chancel- lor who won the argument. The barristers have repeatedly complained that Lord Mackay produced his Green Papers with- out consulting the profession, a charge repeated again during the debate by the Lord Chief Justice, Lord Lane. In his closing speech, Lord Mackay proved, after getting out the correspondence, that he had offered to consult the judges as long ago as last autumn, and they had turned him down. Lord Lane was obliged to withdraw the assertion. Nor was this all. Some very imprudent expressions were used during the debate by senior judges. You cannot, in this day and age, afford to sneer at 'butchers and grocers'. And one thing I have learnt, as a journalist, is that it never pays to compare anyone in British politics to Hitler; so references to 'swastika armbands' and 'toothbrush moustaches' are likewise to be avoided. The judges used these, and similar, phrases, and they are words that stick in the mind after the arguments are forgotten. Moreover, they used them while at the same time com- plaining that the Green Paper proposals were a threat to the independence of the process of law. Over the presentation of the barristers' case by their judicial seniors there hung an unmistakable air of hyper- bole.
Why is it that judges, who have usually been successful advocates in their day, seem to lose the power to persuade? I
suppose the simple truth is that they become accustomed to having the last word in court, to laying down the law. No one, as a rule, answers them back and their obiter dicta are received with obsequious chuckles or at any rate in acquiescent silence. Anyone who relishes, as I do, the splendid volumes of Campbell's Lives of the Lord Chancellors and Lives of the Chief Justices (not forgetting the continuations by Atlay and Heuston) will know that even the greatest judges, when they stray into alien political territory, can be most injudi- cious. They are particularly liable to go over the top when dealing with the pay, conditions and privileges of their profes- sion. They rightly place great importance on the independence of the judiciary, but they have an unfortunate tendency to try to bring it into the argument when it is strictly irrelevant and (as in this case) under no threat whatsoever.
In the present controversy any sign of exaggerated argument or language by the judges is likely to be noticed the more because the man they are going for, Lord Mackay, appears to be so eminently reasonable. He is, in fact, emerging as one of Mrs Thatcher's most sensible appoint- ments. His moderation in speech is deadly. When the judges made their calamitous error of calling a meeting during working hours — an error they were quickly obliged to admit after ferocious press criticism — it was Lord Mackay who, with great astute- ness, got them off the hook and came to their rescue with a generous letter to the Times. The leaders of the Bar would be well-advised to regard him as a formidable opponent. Any urge to treat him as a Scottish lawyer who knows little of things down here should be firmly resisted. In the minds of the public his Scottishness is if anything an advantage, as they see him as someone who comes without prejudice or axe to grind to improve a system of justice which they know in their hearts to be antiquated.
Just how antiquated was shown by BBC Panorama's treatment of the problem this week. In most respects it was a confused and confusing programme, marred by an unsuccessful attempt to reconstruct court processes, using actors. But there was enough adjusting of wigs and flashing of silver-buckled shoes and silk stockings to remind viewers that the law is the most conservative and the least reformed of all the professions. It would not be difficult to arouse public hostility. Ordinary people fear contact with the law and its costs. Shakespeare, as usual, put his finger on it when he has Dick say in Henry the Sixth Part Two (IV ii 73): 'The first thing we do, let's kill all the lawyers.' The Bar is powerful in both Houses of Parliament and it is fighting a government which has probably taken on too many opponents at present. But it must keep its elderly hotheads under control. It is all going to be a fascinating exercise in public persuasion.
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