The Marriage Foundation: playing devil’s advocate
May 4, 2012 14 comments
The Marriage Foundation was launched by Sir Paul Coleridge earlier this week, and this experienced High Court judge is the organisation’s obvious champion. Sir Paul, who spent 30 years as a specialist family law barrister, has previously urged couples to “mend it, don’t end it”. There is no question that he is born to the job.
The Marriage Foundation is dedicated to “reaffirming marriage as the “gold standard” for couple relationships”, and its unveiling has brought a blaze of media attention. It has been featured in all the newspapers. Sir Paul even penned a piece of his own for the Daily Mail. A holiday snap of his smiling family ran alongside it.
Actually, the media coverage has been mixed. The Times, Telegraph and Mail have given their approval:
“How refreshing to hear someone in public life so robustly tell the un-PC truth like this. As a family law specialist barrister for some three decades before becoming a judge in the family courts, Sir Paul has personally stared into the heart of this particular darkness.
“So, too, have the other lawyers who have joined him as patrons of his foundation, including Baroness Butler-Sloss, former president of the High Court Family Division, and Baroness Shackleton, who acted for Prince Charles in his divorce from Diana, Princess of Wales.”
(Melanie Phillips, The Daily Mail)
The Guardian and Independent have been somewhat less generous:
“He doesn’t refer to the easy cohesion and pragmatic, quotidian bonds that cohabitation, civil partnerships and joint bank accounts can bring. Nor does he speak about the loaded misery and debilitating unhappiness of remaining in a bad marriage – a self-immolating act that will just as surely poison the minds of yourself, your spouse and any children you happen to have had.
“Coleridge’s view is one of a plague doctor, arriving in all his ceremonial garb and applying a poultice to your foot while one of your arms falls off. The solution to all these problems and more is to work on the individuals who might one day sleep in the marital bed, rather than forcing us all into it and shutting the door so that the conjugal necessaries can take place.”
(Harriet Walker, The Independent)
And as ever, my fellow family law blogger John Bolch has his own, irreverent take.
I have always liked and admired Sir Paul Coleridge, but I am going to play devil’s advocate here. I would like to pose another question. Is a High Court judge suited to heading such a high-profile campaign? What are your thoughts?
I am asking this question because earlier this year, in a Guardian poll, some 58.2 per cent of readers backed the proposition that judges should confine their contribution to public debate, to their own judgments.
The poll followed an important speech made by Lord Neuberger, Master of the Rolls, to the students of the Holdsworth Club at the University of Birmingham. In it, he called upon judges to uphold judicial independence and the court’s authority.
“Individual independence refers to each judge’s ability to decide any particular case by applying the right law to the right facts”, Lord Neuberger noted. “Judges must be independent of the parties, and must not be subject to any pressure or inducement from the parties. They must have no interest in the outcome and must be open-minded and impartial in their approach to the issues. A speech on a subject which may become the subject of judicial determination, and in which the judge’s views on the subject are expressed in a particularly uncompromising or trenchant way, could be seen as compromising this aspect of judicial independence. That is because it could be said that, if the issue on which they had spoken came up in litigation, they could not approach it with an open mind. Entering into the controversies of the day can result in a judge being unable to determine those controversies judicially.”
He proposed seven “possible principles”, which I have copied in full below:
“First, it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.
“Secondly, any comment should be made following careful consideration of the impact which it might have on both aspects of judicial independence. The Scalia situation should be avoided as should the Harlan Stone situation.
“Thirdly, a judge should consider the effect on the judiciary generally of any view expressed. The judiciary’s claim to institutional independence depends in part on its institutional reputation and standing. An individual judge may regard a particular statement as justified and be prepared to take any consequent criticism, but the effect on the judiciary generally may render it inappropriate to make the statement. It may be inevitable that judges may disagree on a policy or constitutional issue when sitting in court, and it may occasionally be inevitable out of court (e.g. when appearing before a Parliamentary committee), However, it would, I suggest, be unfortunate if it frequently occurred voluntarily. If such a disagreement does arise, it should be argued in an entirely seemly way, as I believe the Sumption-Sedley debate has been conducted.
“The 2005 Act makes it clear that the Lord Chief Justice is head of the English and Welsh judiciary, and I would have thought that it would require very exceptional circumstances before a judge expressed views out of court on a policy or constitutional issue which is inconsistent with his position. Of course, this is normally a self-denying ordinance as, provided that they do not bring the judiciary into disrepute, judges are independent and free to express their views, as even Lord Kilmuir accepted.
“Fourthly and more specifically, a judge should think carefully about how any statement about politically controversial issues, or matters of public policy, might affect, or be affected by, the separation of powers, and comity between the three branches of the State. May it be said, for instance, that the statement trespasses into forbidden territory, and, if so, can it be justified on the basis that it falls within the appropriate ambit of judicial speaking out? And, if it can, is it expressed in terms suitable for a judge entering the arena in a non-judicial capacity? The same considerations arise when members of the executive or legislature seek comments from serving Judges. Comity and the separation of powers may well call for reticence.
“Fifthly, judges should think carefully of their audience, and the impact their comments might have upon it, and upon any wider audience, including the media. Might that impact, or potential impact, call into question their independence, their ability to carry out their fundamental role of doing justice according to law? Could it call into question judicial independence? In particular, if a judge is proposing to discuss a point which may subsequently come to court, care should normally be taken to make it clear that the judicial mind is not closed.
“Sixthly, and in this I agree with Justice Mason, judges should not seek publicity for its own sake, or use their ‘office as a springboard for causes (however worthy).’
“Seventhly, there are rather a lot of judicial speeches being made at the moment. I wonder whether we are not devaluing the coinage, or letting the judicial mask slip. In the light of the fact that I may be characterised as a serial offender, perhaps the less I say about that point, the better.”
Sir Paul Coleridge is a serving judge. This means that in the future, there are likely to be people who appear before him having initiated a divorce by leaving their spouse, having an affair, behaving unreasonably – or even all three! If you were that person, how would you feel if your divorce was to be heard by the head of The Marriage Foundation? Personally, I have no doubt that justice would be done. But would that spouse have grist for a grievance, were they dissatisfied with the outcome? Isn’t neutrality the most important feature of a judge’s job?
Sir Paul is a wonderful advocate and he has amassed many admirers. He has powerful supporters and substantial funding. He made a charming and thoroughly persuasive case for his Marriage Foundation on the Today Programme on Radio Four. His argument is that his position as a family judge gives him an ideal platform to speak out, given the family disputes he witnesses in court.
Lord Neuberger’s principles will guide the way. But it’s a tricky question, isn’t it?
May 4, 2012
Categories: Family Law