Judge watch  Secrecy  Straw

Justices should be seen to be done

A ruling that the disciplining of judges can remain secret is an outrageous departure from the trend towards transparency

 Monday 15 June 2009 14.30 BST

Secrecy, once diagnosed by Richard Crossman as "the British disease" seems to be on the wane: the failed attempt to cover up MPs' expenses might be thought to have proved, once and for all, that only transparency can produce accountability.

But the bizarre decision (pdf) by a freedom of information tribunal that disciplining and even sacking of judges must remain a state secret unless the government chooses to release the information, shows just how rampant the disease is in the Ministry of Justice, the department ironically responsible for freedom of information.

The Guardian had asked for the names and the reasons why more than 100 judges in the past decade had been disciplined. The ministry refused to provide this information, claiming that it would "damage public confidence in the judiciary in a way that would prejudice the conduct of public affairs".

The information tribunal a judge, David Marks, and two representative lay persons, Michael Hake and Pieter de Waal has upheld this bogus argument, adding as a further reason for secrecy that "there would clearly be a risk of there being great distress to at least some judicial office holders" whose "privacy would be invaded, perhaps intrusively so" by press coverage of their misconduct.

This is an outrageous decision. Judges are highly paid public servants whose conduct in court and (to an extent) out of court must be above reproach: it is fundamental that the public should know how complaints against judges are resolved and the reasons why particular judges have been reprimanded or sacked.

The initial decision to protect judges from having their misconduct disclosed was made by the previous lord chancellor, Charles Falconer (so much for his claim to have been a champion of openness), and the decision to waste public money by fighting the Guardian tooth and nail was made by Jack Straw, the justice secretary, who has evidently learned nothing from the MPs' expenses debacle.

Straw insists on reserving to himself (in consultation with the lord chief justice, Igor Judge, so he can be influenced by the views of the senior judges' club) the right to decide whether to name and shame a misbehaving judge.

"Publicity is the very soul of justice," said Jeremy Bentham. "It keeps the judge, while trying, under trial." Not, it seems, when the judge himself is tried by the justice secretary: Straw seems to insist that justice may not be seen to be done.

One of the worst features of the information tribunal's decision was its misuse of the concept of "privacy" as an excuse to hush-up misconduct by public figures. The sanction imposed by the justice secretary is not a private document nor is the official record of it, as the information tribunal ruled, "private data" exempt from disclosure under the Data Protection Act. It is public data, a record of the findings and the sanction on a public official, and it should be as accessible as any court judgment.

The real culprit, of course, is parliament once again, a hopeless protector of liberty. The Guardian initially submitted its request for details of judges' misconduct in 2005. The government inserted a clause in the Constitutional Reform Act which came into force in 2006, giving the lord chancelllor and lord chief justice express power to disclose or not to disclose their disciplinary sanctions. So any change in this unacceptable position for the future must be made by parliament. When MPs turn, as they must, to clean up their own act in relation to disciplining errant members, they should at the same time ensure that all punishments of judges imposed by the executive are published.

The Ministry of Justice is promising to publish more information about misbehaving judges let's hope it breaks the habits of its past and actually does so.

The rule that justice must be seen to be done requires that justices must be seen to be done as well.


If you know of any cases in which judges have misbehaved, please contact me on rob.evans@guardian.co.uk