Gerry R. Rubin

Judicial Free Speech versus Judicial Neutrality in Mid-Twentieth Century England: The Last Hurrah for the Ancien Regime?

In mid-1950s Britain two significant events occurred in respect of the doctrine of judicial neutrality in that country. In the first, the Lord Chancellor of the day, Lord Simonds, had refused permission for the experienced and well-known senior judge advocate, Lord Russell of Liverpool, to publish his sensational history of Nazi war crimes, The Scourge of the Swastika,¹ so long as he (Russell) continued to hold judicial office. For Simonds was insistent that the judiciary must keep their counsel on virtually any matter outside the courtroom, a view shared both by his immediate Labour government predecessor, Lord Jowitt, and by his Conservative government successor, Lord Kilmuir. After a public standoff when neither side would give way, the deadlock was broken when Russell, rather than risk being sacked for disobedience, chose to resign his judicial office to a fanfare of publicity in the press and duly published his book shortly thereafter. Moreover, what lent the Russell confrontation an added edge was not just Simonds's complaint that the book could be perceived as anti-German and, therefore, as political. It was that publication at that time could have a damaging effect upon Britain's policy of rehabilitating West Germany within the Western alliance.	1
In the second significant event in the following year, Simonds's successor, Lord Kilmuir, had refused to permit senior judges to participate in a BBC radio programme that planned to discuss the scarcely controversial subject of eminent judges of the past. He followed this up by issuing written instructions, now known as the Kilmuir rules, reinforcing the prohibition on judicial engagement with the media. Whether the rules (abolished in 1987, below) were issued because of the BBC incident, as has been assumed, or whether the banned radio broadcasts simply offered a convenient opportunity for their release is a moot point. Certainly the Russell case the previous year was a far more public and more widely reported controversy than the BBC episode. For it is not even clear that any senior judges had been approached by the BBC to participate in the programme before the Lord Chancellor resolved to issue his rules.	2
Nonetheless it cannot be disputed that both incidents raised important questions regarding the nature and scope of judicial neutrality in Britain in the 1950s. The issue is not, of course, a parochial one. For it is undoubtedly a truism that the independence of the judiciary is perceived as one of the strongest foundations of a democratic society. Indeed the formal endorsement by the General Assembly of the United Nations (UN) in 1985 of the "Basic Principles on the Independence of the Judiciary," following their adoption by a UN Congress on the Prevention of Crime and the Treatment of Offenders earlier that year,² emphasized that the doctrine (also referred to as a concept or convention of the constitution, or even as political rhetoric, as well as a principle or doctrine³) is expected to be of universal application, notwithstanding that it may not be universally respected in practice.	3
As to the contents of the "Basic Principles" the actual formulations may vary from one constitutional system to another.⁴ Nonetheless, the doctrine is widely recognized as meaning both the freedom of the judiciary from executive control or influence and also security of tenure subject to the existence of valid grounds for removal, generally covering incompetence or misbehavior.	4
However there is a further dimension to the doctrine with which this paper is especially concerned. That is that the judiciary should neither exhibit bias in adjudication nor place themselves by their words or deeds in a position whereby there might be created in the minds of observers a suspicion, let alone a perception, of bias. Thus the restraint applies not only to prevent objective bias but also to eliminate the risk of what might be described (perhaps confusingly) as subjective bias where substantive evidence of partiality is absent. In the United Kingdom such bias or the perception thereof might be established by evidence of a financial or political interest on the part of the judge in the outcome of the case or by evidence suggestive of the possibility of improper influence.⁵ Indeed in order to eliminate the possibility of judicial bias, especially of the political variety, in respect of the outcome of cases on which they are sitting, and also to maintain its corollary, judicial neutrality (the term generally preferred in this paper), yet another consideration has been assumed to be required. That is, judges must endeavor to ensure that even in their extra-judicial activities, they must exercise self-restraint both in respect of uttering personal opinions and also in regard to their conduct or affiliations outside the courtroom. In particular, these self-denying ordinances will relate to matters loosely described as current affairs, a term identifiable with social, economic, or political issues liable to be discussed or debated in the public arena.	5
Thus the independence of the judiciary not only requires the executive and the legislature to respect judicial autonomy.⁶ It has also imposed on the judiciary the obligation to avoid expressing views in public, or raising the impression, suspicion, or possibility that their judgments could be influenced by factors, usually of a social, economic or political character,⁷ other than the application of the principles of legal reasoning or the rules of evidence. In respect of the period covered by this paper (which concentrates on the 1950s but which also extends its purview into more modern times), we shall observe that the judicial authorities shifted in their view as to what, in respect of judicial free speech, was required of the judiciary in order to uphold judicial independence. From a position in the 1950s in which a virtually total ban on extra-curial judicial utterances was deemed by the head of the judiciary to be essential to judicial neutrality, the current situation is now that judicial free speech, assuming that it is not egregiously exercised, is considered to be not incompatible with judicial neutrality.	6
In contrast with current arrangements, therefore, the approach favored by the majority of, if not all, Lord Chancellors as heads of the judiciary from 1945 until 1987 was for the judge effectively to take a vow of silence and to confine his remarks within the proper, narrowly defined, scope of his judicial duties.⁸ Of course the judge could seek to obtain authorization from the Lord Chancellor to speak in public or to pen an article or book, but such an option probably was rarely exercised. Additionally, it was likely to be futile, as the focus of this study suggests, leaving those judges wishing to "speak out" with the two options of either maintaining their Trappist silence or of expressing their views and awaiting any recriminations from on high.	7

Looking Ahead
Both the Russell showdown and the BBC affair must, of course, be located within the broader experience of the judicial neutrality doctrine in Britain after the Second World War. It will thus be seen that the apparently rigorous approach by the head of the judiciary to the issue of judicial free speech, exemplified by the Kilmuir Rules, could be compromised by exceptions, exclusions, reservations, and omissions of one kind or another. Indeed, let us, at this stage, fast forward to January 24, 2007, and to a sitting of the House of Lords select committee on the Constitution.⁹ The witness was Lord Mackay of Clashfern who had been Lord Chancellor between 1987 and 1997. It was he, shortly after his appointment in 1987, who had announced that he was to abolish the thirty-two-year-old Kilmuir rules. Asked by the select committee whether he regretted his decision, Mackay had no doubts whatever. Apart from pointing to the unworkability of their equivalent in Scotland, where Mackay had previously practiced at the bar, he insisted that since the judiciary were an important part of the community, he did not understand why "they should be mute when everybody else can say what they like." Indeed, he took the independence of the judiciary to mean also their independence from the Lord Chancellor as head of the judiciary. In other words everything implicit in Russell's campaign to publish his book (while preserving his job) was endorsed by a subsequent Lord Chancellor some thirty years after the confrontation with Simonds.	8
It is improbable that the Russell case was uppermost in Mackay's mind (or even known to him) when the latter made his important decision. Indeed the wider context to the announcement in 1987 must be the enormous changes (to be discussed in more detail later) since 1954 in British society and in its legal landscape. For example, in respect of legal reasoning, judicial activism soon began to eclipse the conservatism of Jowitt and Simonds (and, to a lesser extent, of Kilmuir). In judicial review, judges were no longer as deferential to authority or to the executive as their predecessors. Judges themselves were no longer the remote and daunting figures that they had been in the past but were more "connected" to society than ever before. Diversity training for the judiciary and human rights discourse were now de rigueur. What was more logical than to extend such "rights" to the judges themselves and to applaud Lord Mackay for his enlightened vision?	9
But in the light of this broad sweep, is there a link between the realization of judicial free speech in the 1980s and the Russell affair of the 1950s? It is suggested that just as the incomparable Lord Denning was embarking in the late 1940s upon his outstanding career as a pioneer for judicial lawmaking,¹⁰ so also might one view Russell in an analogous light as a pioneer for judicial free speech. Thus whereas judicial creativity had become the new orthodoxy in legal reasoning from the 1960s in the wake of the path illuminated by iconoclasts like Denning, so also might the revised judicial neutrality doctrine from the 1980s acknowledge the career-sacrificing actions of a trailblazer (viewed no doubt by others as a maverick or even as a troublemaker) from an earlier era.	10
Admittedly, other factors were at play, including the sheer impracticability, if not impossibility, of preventing the judiciary from engaging with controversial issues whether on or off the bench. Yet Russell's crusade can actually be seen as anticipating a new settlement consistent both with debunking the myth of judicial autonomy, exposed through judicial lawmaking and through public law "encroachment" upon political decisions, and with the recognition that, as Lord Mackay expressed it, "The idea that the Lord Chancellor's consent should be required before a judge is entitled to express a view to the media seemed to me to be utterly inconsistent with [the principle of judicial independence]."¹¹	11

Jowitt, Simonds, and Kilmuir
Whether there is a direct relationship between the judicial philosophy of the Lord Chancellor of the day, on the one hand and, on the other, the scope for judicial free speech during his regime is, perhaps, not as clear-cut as might be assumed. However, the broadly conservative judicial approaches of the Lord Chancellors of the 1950s tended to correlate with a restrictive approach to judicial free speech. In respect of Jowitt, Lord Chancellor during the postwar Labour government, his public utterances tended to sing the praises of judicial conservatism which conceived of the judges as being charged only with the task of applying or discovering the law and not with developing it (which was parliament's responsibility). Their role was therefore to ensure certainty and predictability in the law and not to shape it to the needs of society or of "justice." Thus on one occasion he told a conference that, We should regard it as our duty to expound what we believe the law to be, and we should loyally follow the decisions of the House of Lords if we found there was some decision which we thought to be in point. It is not really a question of being a bold or timorous soul:¹² it is a much simpler question than that.... It is quite possible that the law has produced a result which does not accord with the requirements of today. If so put it right by legislation, but do not expect any lawyer, in addition to all his other problems, to act as Lord Mansfield did, and decide what the law ought to be.¹³ While Jowitt, in fact, spent little time sitting as a House of Lords judge (most of his time in office was served sitting on the "Woolsack" as Speaker of the Upper Chamber), it may be argued that the above fairly represents his judicial philosophy.¹⁴ It was certainly reflected, as we shall see later, in his attitude towards Denning's extra-judicial utterances.	12
In turning to Simonds and to his rigid stance in the Russell affair, we in fact encounter the twentieth century's high priest of British judicial conservatism as defined above.¹⁵ As he stated in Jacobs v. London County Council (1950), A.C. 361, the task of the courts is "to consider what the law is, not what it ought to be," a view shared with the majority of his fellow law lords at the time. Many of his 149 judgments in the House of Lords between 1954 and 1966 (he resigned due to ill-health in 1962 but was called out of retirement on five occasions thereafter) represent robust rejections of Lord Denning's pioneering efforts to reform the law without the assistance of parliament. In Scruttons Ltd v. Midland Silicones Ltd (1962), A.C. 446, at pp. 467–68, he firmly rejected Denning's attempt in the same case to establish third-party rights in contract, commenting that "it is more important that the law should be clear than that it should be clever."¹⁶ Notwithstanding the alternative view that it was reasonable to expect the highest judicial body in the land to seek to ensure that the law was "fit for purpose," appeals to "reform" or to "justice" carried no weight for judicial conservatives. Thus such calls should not be allowed to undermine the proper application of laws which were subject to binding precedent or permit the reinterpretation of statutory wording to which, Simonds insisted, a literal meaning must be given. It is difficult to imagine that he would have welcomed the Practice Statement (1966), 1 WLR 1234 permitting the House of Lords to depart from its own previous decisions, an idea he had opposed in 1962.	13
Perhaps that narrow conception of the judicial role made him more likely to conclude that Russell was indeed engaging in a "political issue," irrespective of a hidden message, simply by virtue of the latter's writing a narrative account of Nazi history, especially one which was still within the personal experience of so many.	14
Finally, in turning to Lord Kilmuir, the former Home Secretary Sir David Maxwell Fyfe, it may be fair to suggest that his judicial approach is difficult to classify. Well-known for his success as a prosecutor in cross-examining Hermann Goering at the Nuremberg war crimes trial after the latter had frustrated Robert Jackson's efforts to extract damning admissions, Maxwell Fyfe found himself suddenly replacing Simonds on the Woolsack in 1954 just weeks after the Russell affair.¹⁷ Whether Simonds's removal by Churchill was a result of the Russell case is open to doubt. While the prime minister, Winston Churchill, had been given a copy of The Scourge of the Swastika, described enigmatically by him as a "terrible book," the Cabinet reshuffle involving the Lord Chancellor was probably an attempted act of self-preservation by a prime minister seeking to restore his diminishing popularity within his own party. For he considered Simonds too lightweight politically to assist the leader of the House of Lords, Lord Salisbury, in getting the government's business through the Upper House.¹⁸ By contrast Maxwell Fyfe's political skills were admired by the prime minister who also felt that the new Lord Chancellor had been disappointed at having been passed over for the Woolsack on the previous occasion in 1951.	15
In some respects it should be of little surprise that Kilmuir's record as a law lord, while not negligible, was certainly not substantial. He was, after all, not only more of a politician than a lawyer. As a lawyer he was more of an advocate than a judge. He presided over twenty-four House of Lords appeals from which it is possible to infer that while by no stretch of the imagination could he be described as an activist law lord, he was not as philosophically conservative in his judicial outlook as Simonds. For example, prior to his elevation to the Woolsack, he had once declared that, "The law is not to be compared to a venerable antique, to be taken down, dusted, admired and put back on the shelf; rather it is like an old but still vigorous tree—firmly rooted in history; but still putting out new shoots, taking new grafts and from time to time dropping dead wood. That process has been going on now and will continue."¹⁹ Yet despite the opinion of one writer that Kilmuir's judgments displayed a "commonsense" approach,²⁰ according to another writer the "abiding impression is that of a judge who was simply uninterested in the development of legal concepts by analytical reasoning."²¹ But his promulgation of the Kilmuir rules was probably more a reflection of his uncomplicated view that judges should stick to pronouncements from the bench and not become media "entertainers" or political pundits, than of his approach to judicial reasoning, whether of the activist or of the conservative variety.	16

The Lord Chancellor and Judicial Discipline
The Lord Chancellor during the 1950s possessed a statutory power under the County Courts Act 1934, s. 7 to remove inferior judges such as county court judges for incapacity or misbehavior (which, in respect of judge advocates such as Russell, was contained in section 32 of the Courts Martial [Appeal] Act 1951).²² Significantly, however, the legislation lacked any definition of judicial wrongdoing including, of course, judicial writings or utterances which were deemed to be improper.	17
In respect of the superior court judges the Act of Settlement 1701, s. 3, stated that judges held their commissions quamdiu se bene gesserit but that they could be removed by the Sovereign following motions passed by both Houses of parliament. At the time of the events in this paper, that provision had been repealed but had been reenacted, in respect of High Court and Court of Appeal judges, in the Supreme Court of Judicature (Consolidation) Act 1925.²³ For Lords of Appeal in Ordinary who sat in the House of Lords, their security of tenure was (and is) provided in similar terms in the Appellate Jurisdiction Act 1876, s. 6. It is the case that some textbook writers asserted that it was also possible for the Crown to remove a senior judge even in the absence of an address by both Houses, by invoking a procedure such as scire facias, impeachment, or a criminal information. But not only was such a view not universal. One of those who did not share this opinion was the leading constitutional law theorist, A. V. Dicey, and the possibility of such removal, whether in law or in practice, is effectively discounted today.²⁴The recent change to the office of Lord Chancellor, stripping him of his judicial role as of April 3, 2006, was not unexpected in view of his previous anomalous position within the British constitutional system. Thus the office has attracted widespread criticism among constitutional theorists in the United Kingdom on the ground that it gravely offended the separation of powers doctrine within the unwritten (or, more accurately, uncodified) British constitution. For the Lord Chancellorship managed to combine not just two of the core functions within the British political system, that is, the legislative and executive functions. It also remarkably succeeded, within a supposedly mature political system, to combine all three functions in one person. For the Lord Chancellor, first, as a member of the House of Lords in its legislative capacity, and second, as a member of the government, was also head of the judicial branch and, until recent times, would sit on appeals to the House of Lords in its judicial capacity.²⁵	18
Apart from the power of the Lord Chancellor to dismiss both defalcating magistrates and errant judges of the inferior courts, including judge advocates,²⁶ and the power of the Sovereign to remove a superior court judge, it seems that the head of the judiciary lacked the right to impose a formal disciplinary sanction short of dismissal on the judiciary. Indeed, Kilmuir admitted as much, certainly in respect of the superior court judges. For in issuing his Rules in 1955, he conceded that he did not actually possess any legal power to keep his senior judges in order. Thus the authority of the Lord Chancellor to issue directions to the judiciary, and certainly the senior judiciary, regarding how they ought to conduct themselves, and to discipline them if they fell below his standards, would not appear to have been grounded in law. Consequently whatever power he did possess to discipline the judiciary (short of removal in the case of the inferior judges) was either a matter of custom and practice, was subsumed by the expectation that there would not in fact arise any occasion obliging him to chide or to suspend a judge or, finally, if the need to intervene did arise, was merely an empty threat built on sand.	19

The Scourge of the Swastika
In reverting to the case of Lord Russell's book, he had been preparing the manuscript since 1953, having previously received clearance as early as 1951 to commence writing from his head of department, the Judge Advocate General (JAG), Sir Harry MacGeagh.²⁷ That approval had been granted on the assurance that the book would contain only an historical and factual narrative of Nazi war crimes. Indeed, in compiling the manuscript Russell had relied extensively upon documentation submitted to the International Military Tribunal at Nuremberg with the result that the work presented, as one might anticipate, a graphic account of wartime atrocities carried out by the Nazis. His coverage not only examined the murderous outrages committed by the Nazis against prisoners of war and on the High Seas, the regime's extensive use of slave labor and of concentration camps, and the massacres of innocent civilians which reached their nadir with the Holocaust and the deaths of six million Jews murdered by the Nazis. He also condemned Hitler's Nazi organizations of torture, genocide and oppression, the SS, Gestapo and Wehrmacht.	20
Whether out of courtesy or of friendship, he then presented a prepublication copy of the book to MacGeagh on July 23, 1954. After reading it the JAG told Russell that although he agreed that the account was indeed factual and historical in its treatment of Nazi war crimes, he was apprehensive about its publication at that particular time. He therefore persuaded Russell to send a copy to Simonds. For MacGeagh was concerned to assure the Lord Chancellor that his deputy's book did indeed comply with the conditions for clearance noted above.	21
However, to his consternation, Russell received a letter some days later stating that the Lord Chancellor was "unhesitatingly" of the opinion that the book was not "solely factual," that the proposed inclusion of grisly photographs could "stir up hatred of the German people" and offer encouragement to those "most strongly critical of the policy of giving Germany an opportunity, by rearmament or otherwise, of exerting an influence in world affairs." Consequently publication of the book at this juncture would inevitably be taken as intended to influence "matters of acute public controversy," and would be wholly inconsistent with Russell's judicial role.²⁸ Notwithstanding the wide criticism expressed in the letter, it is possible that for the Lord Chancellor his objection was not merely in respect of the tone or content of the book, but to the very act of a judicial officer writing a book in the first place. In other words, for Simonds the constitutional principle as applied to serving judges must brook no exceptions or special cases.²⁹ Indeed, that the text could be construed as relevant to a matter of current political concern, let alone was at odds with government policy, merely compounded the wrong. Thus Russell's protestation that the volume was simply a nonjudgmental factual and historical account of Nazi atrocities cut no ice with the head of the judiciary.	22
The upshot was that with Simonds refusing to budge and with Russell insisting upon his plan to publish, the latter had no option but to submit his resignation on August 8, 1954. No doubt he was gratified to learn that the event had been duly reported across the front pages of the national press, with the Daily Express even agreeing to serialize the book.³⁰ Most coverage was purely factual but included the government's opinion about the political damage to British-German relations which could result from publication. Opinions were, however, divided on which party occupied the moral high ground on the matter. Thus the populist Star newspaper claimed that Russell's book was justified in terms of a timely reminder not to airbrush Germany's crimes from history.³¹ On the other hand, newspapers such as the Manchester Guardian and the Observer argued that the constitutional principle at stake favored Simonds's conservative stance.³² Yet the irony is that despite their radical credentials it was not these latter "quality" newspapers, but the popular press, which saw fit to question the status quo.	23

Kilmuir Rules
As to what Simonds's successor, appointed just two months after the Russell affair, made of the controversy, we have no direct evidence. It is, of course, possible to infer that the populist backing for Russell would jar with those immersed in the dignity of the law. Moreover, while Kilmuir clearly possessed more sensitive political antennae than Simonds (which might otherwise have inclined him "to go with the flow"), and while the credo of judicial restraint was not an article of faith for him, he at least shared the latter's belief that the judiciary should refrain from any dealings with the media.	24
For when asked by the BBC in July 1955 to permit a number of senior judges to participate in a proposed radio series to discuss eminent judges of the past, he had no qualms about turning down the request. Clearly, what to some might have appeared as an innocuous and somewhat scholarly radio programme was, to the Lord Chancellor, unseemly "entertainment." But he did not stop there. For he swiftly followed up his negative reply by arranging for his letter containing his refusal, henceforth known as the Kilmuir rules, to be sent to each of his judges making clear that a policy of silence off the bench was to be expected of the judiciary.	25
In consequence, all the judges except the Law Lords (whose conduct was a matter for the House of Lords) now received letters proclaiming that,³³ " ... the overriding consideration ... 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 which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism." Therefore since, according to the rules, every nonjudicial remark in public by a judge would "necessarily" attract criticism, the irresistible inference was that silence was the only way by which judges could comply. It hardly seemed necessary, therefore, to add that, "It would, moreover, be inappropriate for the judiciary to be associated with any series of talks or anything which could be fairly interpreted as entertainment." Indeed it continued, " ... as a general rule it is undesirable for members of the Judiciary to broadcast on the wireless or to appear on television [though] there may be occasions, for example charitable appeals, when no exception could be taken...." Where there was "some special occasion" the Lord Chancellor should first be consulted, a choice of wording which perhaps reflected Kilmuir's admission regarding his lack of disciplinary powers, at least in respect of the superior court judges.	26
Thus, notwithstanding the imprecise references to "inappropriate" or to "undesirable" judicial behaviour, the rules appeared to have blocked off all opportunities for the judges to speak in public, except as part of their judicial duties. The judges were therefore banned from contributing to public debate on matters of general interest (or "current affairs"), something that Russell had inappropriately sought to do while still a judicial officer. Indeed they were also instructed not to participate in such matters even where, on the face of it, their involvement could not be said to raise suspicions of partiality or of other impropriety in judicial decision making.	27
As to which extra-curial pronouncements made in public could nonetheless fall within the actual performance of their judicial duties, it will be seen (below) that the delivery of prestigious lectures on legal topics seemed to have been sanctified since time immemorial. However the tightly drawn licence to speak out clearly did not extend to the case of judges explaining to the public and press outside the courtroom the rulings which they had delivered in particularly controversial or difficult cases.³⁴ The Kilmuir rules therefore set out the Lord Chancellor's stall in what seemed to be in no uncertain terms. How the heads of the judiciary dealt with other "wayward" judges (apart from Russell) by means of dismissal or lesser punishment will be considered in due course.	28
Why the Lord Chancellor considered that "every" public utterance by a judge would "necessarily" lead to criticism remains difficult to explain. For it seems most implausible that political controversy, comparable to anything stirred up by Russell or by the incidents involving a number of judges to be recounted later in this paper, could possibly emerge from a discussion by judges in 1955 of the record of leading jurists of the past. Moreover even conflicting historical assessments of some of those distinguished predecessors such as Coke or Mansfield would surely fall within the realm of academic discourse.³⁵ That Kilmuir was exercised by the prospect that contemporary lessons might be drawn from discussion of eighteenth century views on the "perfection" of the common law, or on the "general warrants" question, associated with Blackstone and Kenyon, respectively, seems unlikely. Even so, it is surely an exaggerated view to believe that such a discussion would thereby thrust the mid-twentieth-century judiciary into controversy or would portray them either as politically partisan or as mere "entertainers" rather than as distant figures of respect and dignity.	29
Indeed, it is more likely that, apart from the Russell case, there also remained departmental recollection of a series of radio broadcasts by serving judges in 1952. No doubt one such talk stood out, that by Lord Denning who, in a presentation on Equity, had characteristically observed,³⁶ "No-one can tell what the law is until the Courts decide it. The Judges do every day make law, though it is almost heresy to say so. If the truth is recognised, then we may hope to escape from the dead hand of the past and consciously mould new principles to meet the needs of the present." Such views would, indeed, have been heretical to Simonds (and possibly so unwelcome, if not positively distasteful, to Kilmuir that the 1955 ban was imposed). Thus we argue that the comprehensive restrictions contained in the Kilmuir rules, while issued in the wake of the BBC affair, can also be understood as a response to other events, including the Russell controversy the previous year. Indeed it is arguable that it was not the BBC proposal but Russell's publishing plans, while he was still a serving judicial officer, which posed a more serious challenge to judicial neutrality, the repetition of which, by any other judicial officer, would have to be deterred in the future.³⁷	30

Categories of Breach of the Principle
While the Russell case might have been the most spectacular instance in mid-twentieth-century Britain of a confrontation over free speech between a judge and the Lord Chancellor, there were a limited number of other instances attracting less public attention when the head of the judiciary was prepared to wield the big stick and to force an apology from errant judges showing contrition (or, less likely, choosing formally to apologize rather than resign for their principles). In exploring the incidents, we seek to identify cases where there was a manifest breach of the principle of neutrality as certainly understood at the time, if not subsequently. For example, a judge, sitting at a hearing, might have criticized a statute or rule of law in such a manner (for example, by condemning the wickedness or folly of the government responsible for it) that his commitment to enforcing the measure was, at the very least, suspect. Similarly he might have conveyed a similar message outside the courtroom, perhaps during a interview with the press, rather than when presiding over a case. Third, a judge might simply have expressed his views on current political as distinct from legal issues, whether or not he was sitting in court. Such political pronouncements would, of course, be seen by the Lord Chancellor as undermining public confidence in the judge's neutrality.	31
Apart from cases of a clear breach of the principle there might be other instances where a judge might engage in public discussion, for example, by delivering a prestigious lecture. In some, probably most, such cases, there would be no breach. This might occur when either the Lord Chancellor himself had invited a judge to address a conference or had indicated that he had no objection to a proposed presentation or publication by a judge, or even where custom and practice appeared to apply, for example, in respect of invitations to contribute to an established series of lectures. However the matter might remain open to debate in the light of what was actually said in public, notwithstanding the approved setting. Thus there might be room for argument as to whether remarks made from the bench or from the lectern in the university's "Great Hall" or in the municipal Guildhall had indeed strayed from judicial reasoning into controversial, unnecessary, and therefore improper social commentary by the judge. Alternatively, there might arise a variant of the Russell scenario: was the publication in question a simple factual history on a (presumably) noncontroversial subject such as the history of the coif (which might absolve the judge from wrongdoing)? Or could the authorities detect an illegitimate subtext in a narrative account as painted by the judge, in which case a breach of the doctrine would be established? By examining further instances of public utterances on the part of the judiciary during this period, it might be possible to ascertain the degree of consistency with which the strict doctrine of the 1950s was enforced.	32

Blatant Breaches?
As to the category where there was a clear instance of the breach according to the rules as then applied, we might begin by referring briefly to an example in 1949, during the tenure of office of Simonds's immediate predecessor, Lord Jowitt, albeit one involving a senior justice of the peace. In this case the chairman of a bench of magistrates in a small Welsh town,³⁸ having fined a local haulage contractor a token one shilling for infringing a petrol rationing statute, conducted an outspoken attack on the legislation as being "evilly worded and not British" before indicating that he would no longer enforce it. Unsurprisingly, he was removed from the Commission of the Peace shortly thereafter.³⁹	33
It was, of course, a minor incident involving a minor judicial personage. However it prompted questions in parliament⁴⁰ and a disgruntled and contradictory letter to the Lord Chancellor from Quintin Hogg MP (later Lord Chancellor Hailsham).⁴¹ The latter, having stated his disapproval of judges who condemn the policy of Acts of Parliament, then appeared to contradict himself by accusing Jowitt of having "effected a breach in the independence of the judiciary from political interference" (presumably by sacking the magistrate). Indeed, while affecting to be nonjudgmental in the matter, he concluded by noting that, "... rightly or wrongly, the right of judicial authorities of all grades to these expressions of opinion is well established and is frequently exercised by High Court Judges" (on which, see below). At least one newspaper was not as indecisive. Thus, "[t]he dignity of Parliament may be upheld. But what of the dignity of the Bench? Magistrates are not robots. They must bring thought and feeling to their duties to discharge them properly."⁴² As well as appearing to endorse the position that judges should be free to question the wisdom of parliament (as was scarcely unknown in sentencing decisions following the abolition of the punishment of flogging in 1948, below),⁴³ it was a sentiment which in due course would echo Lord Mackay's justification for the relaxation of the rules some decades later.	34

Gaman, Goddard, and Lloyd-Jacob
According to Stevens inferior judges in the twentieth century who offended against the boundaries of proper judicial behaviour would be, " ... treated with rather less deference than High Court judges. They have been removed without any constitutional fanfare."⁴⁴ While Polden's research into the history of the county courts until 1971 has not uncovered cases of actual dismissal of such judges, apart from a notorious case in 1850, the same author notes that the Lord Chancellor could, for a short time, exert control over judicial behavior by awarding differential salaries or, from 1919, by determining whether or not to extend a period of judicial service beyond retirement age.⁴⁵	35
In respect of inferior judges serving under Simonds, Stevens cites the case of Judge Gaman, a county court judge obliged by the Lord Chancellor to apologize in open court in 1952 for having condemned in an adultery case the morals of the local population. Whether the remarks were "political," sociological, or simply morally judgmental (which they clearly were), Simonds considered them as straying outside the judge's proper remit.⁴⁶	36
However, suggestions of double standards were always below the surface and the faint outlines may also be detected in the case of perhaps the most powerful Lord Chief Justice of the twentieth century, Rayner Goddard. It will be recalled that in his letter to Jowitt (above) the future Lord Hailsham had referred to judges at Assize recently giving expression to their own opinions on matters of judicial enforcement. The reference was in fact to the familiar outburst from the bench of judicial anger at the abolition of corporal punishment by the Criminal Justice Act 1948. Although the particular instance involved a statement by Mr Justice Streatfeild at Leeds Assizes on March 13, 1950,⁴⁷ the most notable incident involved the Lord Chief Justice himself, the stern Lord Goddard. While the "Chief's" vigorous comments from the bench on this issue (below) naturally attracted wide publicity,⁴⁸ he had already rehearsed his views some months earlier at the Lord Mayor's annual banquet in the City of London in July 1952. There, he expressed the view that the abolition of flogging in 1948 (replaced by detention in respect of youths) had contributed to the resurgence of violent crime in British society. The inference was clear even if it was not expressed in explicit terms. Parliament had made a mistake in passing foolish legislation, and it was time to turn the clock back.	37
There is no evidence that Lord Chancellor Simonds, sitting a few seats away at the banquet, administered a dressing-down to Goddard for remarks which could well be construed as infringing the judicial neutrality doctrine. Indeed when the Lord Chief Justice, during the trial at the Old Bailey in December 1952 of two young brothers for armed robbery, repeated his lament that corporal punishment was no longer available,⁴⁹ the silence from Lord Simonds was again deafening. Perhaps the latter was not prepared to take on as powerful a judge as Goddard (if "guilty as charged"). Or perhaps he chose to construe such remarks by the head of the criminal division simply as an explanation to the public of the practical difficulties supposedly faced by the criminal courts in regard to law enforcement.⁵⁰	38
Of course the Welsh case and the Goddard affair, when contrasted with each other, might be seen as exposing the contradiction at the heart of the doctrine. For the two cases, when set aside each other, suggest that one judge's criticism of a legal measure may be interpreted as a political attack on the folly of parliament, while another judge's condemnation of a major change in the criminal law is approved as a legitimate extension of his judicial responsibilities.	39
As the Russell case underlines, judges during this postwar period could spoil their copybook by venturing opinions off the bench, not only on matters relevant to the legal system, but also on topics of a general nature, particularly those involving social, economic, or political issues. Whether all such contributions were inevitably controversial (as Russell's almost certainly was) is a moot point. Certainly the Lord Chancellors of the 1950s had no difficulty in defining any public engagement by the judiciary with nonlegal "current affairs" as being inherently tainted and therefore to be avoided.	40
The unacceptability of serving judges contributing to public affairs off the bench may be illustrated by a case involving the High Court judge Mr Justice Lloyd-Jacob. He had written to The Times two months before the Russell affair blew up, condemning nations which used the hydrogen bomb. Not surprisingly Simonds delivered a vigorous riposte, writing to the judge, "I thought it [the letter to The Times] would be regarded as a deplorable incursion by a High Court judge into the realm of controversial politics, as indeed it is.... A judge ought not to express his views in public on matters which are either political or controversial, and the subject-matter of yourletter is both. In my opinion it was a breach of your duty as a Judge to write the letter, and I am deeply sorry that you wrote it."⁵¹	41
Lloyd-Jacob survived with a stern ticking-off and, indeed, continued on the bench until 1970.⁵² No doubt there were mitigating factors including his abject apology, his explanation that he had been motivated by his strong Christian principles and not by politics (he later conducted an inquiry for the Church Commissioners into the Ecclesiastical Courts), that the Kilmuir Rules had not yet been released and, finally, that the Lord Chancellor, by himself, actually possessed no power to dismiss a High Court judge.	42
There was, of course, one further mitigating factor. There had been no open defiance by Lloyd-Jacob of the Lord Chancellor's authority. That is, the incident was not an instance in which a refusal of permission to a judge to speak or write in public had been ignored. Indeed it is difficult to imagine such a scenario. Thus it was, perhaps, with a view to preempting such a possibility ever arising (that is, by clarifying in expansive terms what was "off-limits") that the Kilmuir Rules, discussed previously, were issued in the following year.	43

Approved Judicial Utterances
There would undoubtedly be numerous occasions where the Lord Chancellor would remain silent (often through ignorance of the forthcoming event) in respect of a judge's proposed ex cathedra utterances. Thus whereas some judges might have sought permission either routinely or ex abundanti cautela before delivering a lecture or before publishing a book which in so doing would cause the department no concerns, others might have considered such an approach unnecessary. For example it would surely be anticipated, and not solely among the senior judiciary, that judges would commonly be invited to address a legal conference or a local law society dinner, or would give a distinguished lecture or series of lectures. On the footing that there had been no previous departmental criticism or other fallout, implied authority for the next occasion could surely be assumed.⁵³	44
Thus judges might address meetings such as the Commonwealth Law Conference. For example, its first meeting in London in 1955, opened by the Lord Chancellor, was addressed by one of the most distinguished of reforming judges, Lord Radcliffe, a House of Lords judge since 1949, who spoke on the work of the Judicial Committee of the Privy Council.⁵⁴ Similarly the judiciary are frequently invited to deliver (subsequently published) annual lectures on legal topics under the auspices of the Holdsworth Club at Birmingham University. Examples include the lecture in 1936 by the first Lord Hailsham, then Lord Chancellor, on "The Duties of a Lord Chancellor"; a lecture on "The Judicial Office" by the head of the civil division, the Master of the Rolls, Lord Greene, in 1938; and a presentation by Kilmuir, when Lord Chancellor, on "Nuremberg in Retrospect" in 1956 (below). Perhaps one of the most significant such lectures in the second half of the twentieth century was Lord Devlin's celebrated Maccabaean Lecture on Jurisprudence in1958 on the relation between law and morality which led to the famous debate between Devlin and Professor H. L. A. Hart of Oxford University on whether the law should reflect morality or whether the latter was a private matter.⁵⁵ There is no indication that prior approval from the Lord Chancellor would be required of a judge before delivering his topic (or that the Lord Chancellor would require to authorize his own contribution).	45
Perhaps more difficult in some respects was the case of the judge or of a judicial officer like Russell, or even of legally qualified staff at the LCO, who sought to write articles or books which expounded legal principles (Russell's controversial book was not, of course, of this genre). While such endeavours among the judiciary were not common, one might nonetheless cite the revised editions of the "bible" of English law, Halsbury's Laws of England, published under the general editorship of the Lord Chancellor of the day. Thus both Viscount Hailsham and his son Lord Hailsham of St Marylebone oversaw new editions during (and outwith) their periods on the Woolsack, with the former serving as Lord Chancellor for over five years between 1928 and 1938, and the latter for almost 12 years between 1970 and 1987. Indeed even Simonds himself had been editor-in-chief of the ecclesiastical law volume of Halsbury which was published in 1955 after he had vacated the Woolsack in order to return to serve as a House of Lords judge. Lord Justice Slesser, the former Solicitor-General in Ramsay Macdonald's first Labour administration in 1924, wrote the volume on Law in the "English Heritage" series published by Longman Greens while still on the bench. Finally, Sir Robert Megarry, appointed to the High Court bench in 1967, published in the same year the tenth edition of his standard work on The Rent Acts, which had first appeared in 1939.⁵⁶	46
Indeed the most controversial episode before the Russell affair was the publication by Lord Chief Justice Hewart of his widely read The New Despotism.⁵⁷ The title is, of course, a bit of a giveaway. For Hewart's target was the perceived rise of unaccountable executive power in Britain, which he saw as being facilitated by a legislature intent upon undermining the rule of law. In particular, he accused parliament of permitting both the unjustified expansion of delegated legislation and the growth of quasi-judicial decision making by civil servants. The government, stung into making a riposte, created the Donoughmore Committee on Ministers' Powers which in 1932 rejected his charges. Given that he himself later expressed regret for having published the volume,⁵⁸ he might well have agreed with the more recent comment that the work was simply a "vehement polemic unworthy of a judge."⁵⁹ Certainly the LCO, according to his biographer, was "angered" at some of Hewart's charges against the government.⁶⁰ However, as to his being upbraided or disciplined by the Lord Chancellor, let alone being condemned by an address by both Houses for his removal, while his biographer notes the anger of the LCO, there appears to be no published evidence for such action taken against him.	47
In respect of Russell, it may be recalled that his superior, the JAG, Sir Harry MacGeagh, had obtained in 1951 what he then thought was permission from the LCO for Russell to write his narrative. However, in the same correspondence⁶¹ the LCO had also stated that, The sort of articles [which presumably included books] that they [judicial officers] are most likely to want to write which concern their own jobs are, I imagine, articles on procedure such as is written from time to time by masters⁶² and others in the legal journals. If your officers contribute articles to law papers, however, they will inevitably appear to criticise the judges from time to time and moreover an expression of opinion by a member of your staff might be very undesirable as it might be thought to be your own opinion or even possibly the opinion of the Lord Chancellor. It is therefore most desirable to exercise great care in vetting articles which are concerned with legal matters.⁶³	48
Thus it is clear that the principle of judicial neutrality was taken at least to discourage, if not positively to forbid, judge advocates and masters in Chancery from writing on legal topics, no matter how dry or dusty the subject might be, unless in the form of mere reporting of developments. Moreover as to matters of interpretation of judgments or of statutory provisions, let alone criticism of judgments or of statutory language, these were dangerous waters for judicial officers (perhaps also because of the risk of drawing ex parte conclusions). Since it is surely reasonable to assume that such instructions were also applicable to the judiciary in the narrower sense, one might infer that the judiciary, also, were expected to refrain from publishing their analyses of legal doctrine, except within the confines of the court room. Yet how this could be avoided whenever the judiciary delivered guest lectures on, for example, the popular topic of aspects of law reform, can only be imagined.⁶⁴	49

Was the Lord Chancellor Different?
Lord Chancellors, of course, received numerous requests to address audiences of lawyers. Thus in 1953 Lord Simonds (as Lord Chancellors, including Jowitt and Kilmuir, were wont to do) addressed the annual conventions of the American and Canadian Bar Associations. His topic was how the basic aspects of Anglo-American convictions about human dignity had remained the same despite the political shifts through National, Labour, and Conservative governments in twentieth-century Britain.⁶⁵ This was plainly not as scholarly (nor, clearly, as nonpolitical) as, say, Birkett's address on "Law and Literature" to the same audience in 1950, or as the same judge's presidential address to the Holdsworth Club in Birmingham in May 1954 on "Advocacy."⁶⁶ As the Foreign Office noted, the Lord Chancellor did not intend to deliver a "purely legal and technical address" but one affording him the opportunity "to introduce any general political reflections which he may wish to put across to an American audience."⁶⁷ Thus, given that he was addressing both conferences as a member of the British Cabinet rather than as Lord Chancellor in his judicial capacity, constitutional propriety was undoubtedly maintained (though the spectacle might have puzzled a number of his American listeners not au fait with these quaint British constitutional arrangements).	50
The fact that the Lord Chancellor at the centre of the Russell affair tended to flit back and forth between "political" and "judicial" activity would not, therefore, be improper under then existing arrangements for the guardian of the "Great Seal," in view of the combination of legislative, executive, and judicial functions reposed in one person.⁶⁸ Moreover his conservative approach to judicial reasoning could not, at least in terms of narrow principle, be said to constitute an infringement of the doctrine of judicial neutrality even if his support for legal formalism could be termed "political," as noted earlier in this paper.⁶⁹ In other words, at a formal level, the charge of double standards could not be made out against him notwithstanding that at a substantive level, the answer might well be different.	51
Indeed in only one incident for which evidence is available did Simonds's actions raise questions regarding whether he himself (notwithstanding his ambiguous role) might have improperly crossed the boundary as a judicial officer into politics. Thus some months before the Russell case, the Cabinet had been discussing a paper by the Secretary of State for War, Antony Head, on possible criminal proceedings arising out of the Mau Mau uprising in Kenya.⁷⁰	52
Simonds had intervened in the discussion with a view to correcting remarks made by the Home Secretary, who at that time was Maxwell Fyfe, regarding the responsibility of the Attorney-General (Sir Lionel Heald) vis-a-vis the Cabinet whenever the senior Law Officer was considering the exercise of his power to authorize prosecutions in sensitive cases. However after the meeting the Lord Chancellor quickly realized that his own strictures had gone too far.⁷¹ He therefore submitted a detailed paper to the Cabinet a few days later, correcting his earlier remarks on the scope of the Attorney-General's autonomy in this respect.⁷² Whatever he had said at the first Cabinet meeting (and there are no departmental or Cabinet records of the details of the discussion), the historian of the office of Attorney-General has suggested that the Lord Chancellor had appeared to blur the distinction between two separate considerations.⁷³	53
On the one hand, there was the matter of public policy whenever the Attorney-General contemplated any prosecution, or its abandonment under the nolle prosequi procedure, in which a minister would be interested. On the other hand, there were the political considerations of the government of the day. If the two separate issues had in fact been blurred in Simonds's contribution to the Cabinet discussion, then one possible (but not the only) inference is that the Lord Chancellor had advised that the Attorney-General was entitled to authorize a prosecution on party political grounds.⁷⁴	54
Apart from whether his account of the Attorney-General's duty in respect of the Cabinet was wrong, the most relevant question here is whether Simonds made his intervention to the Cabinet discussion (on a matter of constitutional law doctrine) in his capacity as the Conservative government executive head of the judiciary or as a judicial head offering "independent" legal advice. If the latter then it appears that he was encroaching upon the jurisdiction of the Attorney-General. However, it is more plausible to hold that in this context Simonds was still continuing to fulfil his governmental role, and had therefore not improperly crossed the boundary between politics and adjudication. Thus his intervention was as justified and as relevant as that of, say, the Chancellor of the Exchequer (or even of the Archbishop of Canterbury) in respect of ascertaining what public policy might require. More importantly, his advice was just as dispensable by the Attorney-General as that of anyone else consulted by the Law Officer before reaching his decision on whether to authorize any particularly controversial prosecution. Thus it can still be maintained that in respect of this incident, which in some ways was discreditable to the Lord Chancellor (at least for having "gone too far"), any accusation against him, based on double standards in respect of judicial conduct (in the light of his treatment of judges such as Russell and Lloyd-Jacob), would be difficult to press home.	55

The Birkett Essay
While it was invariably the case that prior clearance was not sought when senior judges, at least, were invited to deliver prestigious lectures (above), there were occasions when the Lord Chancellor was appreciative of the dictum that to be forewarned is to be forearmed. For it seemingly applied in respect of Simonds's treatment of Lord Denning, who had previously given the Holdsworth lecture in 1950 on "The Independence of the Judges." Thus when in 1953 the Foreign Office sought a judicial contribution to the United Nations Year Book on Human Rights on the topic of the independence of the English judiciary, Denning's name, put forward by an official at the LCO who had recalled the judge's Holdsworth lecture, was vetoed by Simonds. Instead, and probably at the instigation of the senior Home Office official, Sir Frank Newsam,⁷⁵ the more tactful Lord Justice Birkett was approved. For the paper, whose contents were to be "objective in tone," would be represented as the British government's contribution to the year book, albeit appearing under Birkett's name.	56
Perhaps with an acute sensitivity to potential political pitfalls, the judge inquired whether, in pursuit of objectivity, he was expected to "show how the independence of the judiciary in this country contributes to the preservation of human rights, that is, the rights of the individual." The reply given was that he should avoid making direct comparisons with other countries such as the struggle for judicial supremacy in the United States, and also avoid referring to the "rights of the individual." Presumably this terminology (as against the "residual liberties of the individual within the interstices of the common law," as the influential constitutional theorist, A. V. Dicey, would express it) smacked of alien entrenched Bills of Rights and written constitutions.⁷⁶	57
Thus despite writing for a human rights year book Birkett was able to skip around potentially controversial matters such as the concept of human rights and related international treaties and, instead, was able to focus on the classic Whig history of Britain, the successful domestic struggle, reflected in the Act of Settlement, to secure the independence of the judiciary from the executive. For the alternative approach might well have led him, too closely for Simonds's comfort, into a controversial realm of policy, or even of politics. And how could Simonds then be certain that Birkett would not invoke such unfamiliar human rights concepts in his approach to future judicial proceedings?	58
Why Denning was passed over for the task was not spelled out explicitly in the files. However, his Holdsworth lecture (above) had not fought shy of starting off on a political (albeit not party political) footing. Thus his opening comments had observed that in respect of judicial independence, "We regard the judges as standing between the individual and the State, protecting the individual from any interference with his freedom which is not justified by the law."⁷⁷ This judicial independence was explicitly contrasted with the Soviet system where the courts in that society were regarded as "part of the State machine to carry out State policy." In the light of such comments, perhaps Simonds felt that Denning could not be trusted to avoid similarly combative political observations in a United Nations publication, and that a safer pair of hands should be called upon.⁷⁸	59
Moreover, after publication of the first Hamlyn Trust lectures in 1949 delivered by Denning under the title, "Freedom Under the Law,"⁷⁹ Lord Chancellor Jowitt wrote to him expressing misgivings about some of the content.⁸⁰ As he stated, "I always hold my thumbs, as the children say, when I hear that a judge has written a book and I am old-fashioned enough to think that the less they write the better it is for all concerned."	60
First, he complained, a judge may state a proposition of law too broadly in the absence of legal argument before him, as Denning was accused of doing in his lectures in respect of medical negligence. Second was the usual worry of judges venturing into controversial territory. One example cited by Jowitt was Denning's discussion of whether there should be enshrined in law a right of appeal from administrative tribunals to the courts. Another was Denning's (disputed) claim that on legal questions raised within departments, the civil service and not ministers decided such matters (controversially implying that this undermined ministerial accountability to parliament).	61
In his reply Denning expressed deep contrition ("Please forgive me for my errors") and explained that he had accepted the invitation to deliver the lectures since many judges had given lectures without adverse criticism.⁸¹ Moreover he acknowledged that lectures on constitutional law "would need careful handling." In other words, he was acknowledging that within liberal democracy (and presumably without seeking to debunk the "myth" of legal autonomy), certain legal disciplines were inherently "political" (or "more political than others"). However he insisted that the judge should not be disqualified from analyzing the law so long as he refrained from adopting what might be taken as a party political position. That Denning had been rebuked by the admittedly "old-fashioned" Jowitt on such points does make it easier to understand the subsequent interventions, noted above, by the similarly inclined "old-fashioned" Lord Chancellors over the following decade (though not, perhaps, why no action was taken in some cases).	62

Mackay's Revolution
As noted previously, the release of the Kilmuir rules severely restricting judicial free speech can be understood, it is suggested, in the light of the Russell case with its connection to matters of high politics and to strategic issues during the Cold War, and not simply to the more esoteric matter of whether judges could speak on the radio about Lord Mansfield. However it is also suggested that the Kilmuir rules, together with the Russell affair, are significant in another sense. For, as explained in more detail in the next section, the two episodes can be viewed as watershed events signalling the "Last Hurrah" for an era in which the judiciary, notwithstanding a few exceptions, can be characterized broadly in terms of overweening stuffiness, formality, remoteness, disdain, affectation of moral superiority and of moral certainty, and an "inward-looking culture."⁸² Such judges, moreover, took for granted a regime of ingratiating deference to the Lord Chancellor's directives. Furthermore, the judiciary's profound conservative outlook embraced not only a rigidly enforced sense of status. It reflected an approach to judicial reasoning characterised by passivity and restraint.	63
In contrast, what gradually emerged thereafter was, first, a gentle steer towards judicial activism in Britain whereby the senior judiciary began to acknowledge that they not only developed or interpreted existing law. They were now prepared to admit that they were actually making new law in their adjudications. Second, a growth in the political power of the judiciary occurred as the reach of judicial review expanded into territory of political controversy. It was these twin developments, commencing from the early 1960s and accelerating in the early 1980s, especially in the public law sphere, which, perhaps in equal measure, both prompted and responded to a changing profile of the British judiciary. As Malleson points out,⁸³ "Thirty years ago [1969] the judiciary was a largely self-selecting, self-regulating and self-taught body which operated within its own informal rules almost entirely free from external scrutiny. [Now] the elitism, secrecy and amateurism which were traditionally the hallmarks of the judiciary are slowly being replaced by diversification, openness and professionalism."	64
It is in this context that Lord Mackay reached his decision to abolish the Kilmuir rules in 1987, declaring, ... I think the principles underlying it [abolition of the rules] are absolutely undeniable. Judges are supposed to be independent, and independent of the Lord Chancellor when he was head of the judiciary as much as any other judge.⁸⁴ The idea that the Lord Chancellor's consent should be required before a judge is entitled to express a view to the media seemed to me to be utterly inconsistent with that.... Advocates or judges often have something to say which is of general importance and, after all, they are in my view an important section of the community, and why they should be mute when everybody else can say what they like I could not see.... On the other hand, I did think that if a person was sufficiently fit to be a judge of the bench in England and Wales he or she should have sufficient judgment to know when they should speak and when they should be silent in matters with the media.... That was a wise decision and one that was generally accepted by the Judiciary.⁸⁵	65
For Lord Mackay, therefore, the determination of what conduct vis-à-vis the media was consistent with judicial neutrality should be left to individual self-regulation and not to oversight from above. No doubt he was prompted towards this conclusion by a greater sense of trust in the good sense of the judiciary than was displayed by Jowitt, Simonds, or Kilmuir. And if any judge were to act improperly in this regard then so be it, as the now-retired Lord Chief Justice Woolf, then head of the criminal division of the judiciary (and subsequently the head of the judiciary after the constitutional reforms of 2005), stated in 2003. For as the latter noted, even if self-regulation did leave a vacuum, the public would soon tire of judges with a "penchant for self-publicity," which he suggested they had done in one notable case in which a judicial figure had participated in an "entertainment" programme on television.⁸⁶	66

New Social Paradigms and the Judiciary?
As prefaced above, the change of rule in 1987 regarding judicial free speech arguably reflects broader developments in both the legal landscape and in British society generally since the 1950s. First, the Russell controversy might be said to have coincided with a period when United Kingdom constitutional law writers were beginning to react against a sterile Diceyan view of the constitution and of its neat assumptions of a sovereign parliament, a politically accountable executive, and an abstentionist judiciary wedded to conservative common law principles and to an acutely formalistic conception of the rule of law.⁸⁷ Indeed in contrast to Simonds and Kilmuir, leading constitutional writers of the 1950s such as Sir Ivor Jennings and Professor Sir Carleton Kemp Allen⁸⁸ were questioning the purity of the separation of powers doctrine in Britain and of the Diceyan theory that by virtue of parliament sovereignty, it alone (and not the judiciary) was the creator of law.⁸⁹	67
By a similar token the subsequent recognition that judicial neutrality would not be imperilled if judges were to indulge their writing passions or appear on radio or television programs (so long as they did not discuss cases with which they were concerned or, perhaps, declare that they would refuse to enforce certain laws), dovetailed neatly with revised thinking among a later generation of constitutional scholars from the late 1960s, such as Professor John Griffith and Professor Carol Harlow who, on the basis of empirical evidence both from the courts and from the practice of politics in Britain, argued for the myth of legal autonomy.⁹⁰ The assumption underlying this myth, upon which the principle of judicial neutrality in the United Kingdom was especially premised during the 1950s, is that politics, ideology, or other external factors play no part in legal adjudication. Such a "mythical" view of law, derived from the principles of Austinian legal positivism, succeeded in exerting, until recent decades, a dominant influence upon the principles of judicial reasoning in the United Kingdom. As noted in respect of Jowitt's and Simonds's legal philosophies, those principles required the judiciary merely to interpret and apply the law, whether it was laid down in statute or discoverable within the interstices of the common law. They thus embodied a legal formalism (or judicial conservatism) eschewing judicial creativity and the development of new doctrinal principles. For under the separation of powers doctrine,⁹¹ the judiciary were not permitted to encroach upon the realm of parliamentary sovereignty. The legislature made new law, not the judges. And since the job of the latter, on this premise, was merely to apply a self-contained corpus of existing law, there was no possible justification for their engagement with the outside world.	68
It is, however, commonplace in British legal literature that, commencing around the 1960s and continuing throughout the 1980s and 1990s, the legal landscape witnessed some dramatic doctrinal transformations. In particular, a new era of judicial creativity in the common law was emerging under the formative influence of House of Lords judges such as Lords Reid, Denning, Pearce, Radcliffe, and (in some respects) Devlin,⁹² a trend taken further in the 1970s by judges such as Lords Scarman, Wilberforce, Kilbrandon, Simon of Glaisdale, Salmon and Diplock.⁹³ As the authors of a classic study of the judicial House of Lords between 1952 and 1968 have noted,⁹⁴ ... the common law has been developed by a process of interstitial legislation by the judges, a process which often involves distinguishing or avoiding awkward precedents. Judges themselves are an integral part of society, and it is not in their interests either that the law should lose respect by appearing impervious to social demands or that social development should be hampered by the uncompromising legalism of judges. Such considerations from time to time call for the judges to throw off the shackles of precedent.	69
The declaratory theory of law was now itself declared as "obsolete as the orthodox natural law theory which sees "right" law as based upon God-given absolute standards,"⁹⁵ prompting a number of senior judges to acknowledge frankly their law-making activities.⁹⁶ It was plain, therefore, that judicial activism, whether undertaken cautiously to fill a gap in the law or more boldly to produce a more "just" outcome, was a powerful new force in judicial reasoning, first rivalling and then eclipsing the legal conservatism approach which had stuck rigidly to stare decisis and which had tended to prevail in the 1950s under the Jowitt, Simonds, and Kilmuir regimes (the latter two still delivering judgments in the House of Lords in the early 1960s). That the House of Lords were no longer bound after 1966 by their own precedents (as noted previously) was, indeed, symbolic of the new approach, the latter surely embodying one of the roles expected of such a tribunal, that is, to refashion the common law to meet new conditions.⁹⁷	70
Second, the senior judiciary were now beginning to develop in the 1960s powerful new principles of public law, particularly in the fields of administrative procedure and the immunity of the Crown from disclosure orders, whose nomenclature, perhaps significantly, shifted from the Crown privilege affirmed by the House of Lords in 1942 to public-interest immunity principles expounded in 1968.⁹⁸ Public law developments, which accelerated in the 1980s to permit both a refinement of the basic principles of judicial review and a widening of its reach vis-à-vis government activity,⁹⁹ may have reflected deep concern on the part of such judges at the increase in the discretionary power of the executive at the expense of both parliament and the citizen. Whatever the cause,¹⁰⁰ one result was an adjustment in the balance of powers whereby judges rather than parliament increasingly held the government to account (a process which also acclimatized the educated citizen to the spectacle of judges apparently determining political outcomes, even if the language employed was legal).	71
Thus contrary to the assumptions underlying the concept of legal autonomy, above, doctrinal developments since the 1960s hardly occurred in a social vacuum.¹⁰¹ Indeed a "new judiciary" has grown up whose thought processes are couched in terms of different paradigms of autonomy, diversity, and human rights, representing a cast of mind far removed from that of Simonds and Kilmuir.	72
Third, while it is true that the judiciary in Britain still remain overwhelmingly white, male, middle class, and public school and Oxbridge educated,¹⁰² one senior (feminist and radical) barrister has nonetheless recently observed,¹⁰³ "The one positive change is that, despite perceptions, more judges are in touch with the social mores. Many today live lives different to those of previous generations.... Their lives are less cushioned and remote from those of the people who come before them. Some of them have even done dangerous things like inhaling dope and reading Marx in their youth."	73
Whether or not they did, indeed, inhale, there nonetheless was witnessed from the late 1980s, among at least some of the superior court judges,¹⁰⁴ an increasingly frequent public engagement (usually in the form of a subsequently published guest lecture) with emerging conceptual issues, in particular, with a previously hidden human rights discourse.¹⁰⁵ Moreover such public discussion among the judiciary coincided with a wider public debate on identity politics, diversity, and an emerging concern with the "rights" of minorities (for example, gypsies, gays, prisoners, asylum seekers). Perhaps a different generation (or simply a new cohort) of judges from the late 1980s, comfortable with pushing further back the boundaries of judicial review (above), were no longer as instantly deferential to authority as their predecessors. As another writer has suggested, "Gradually the old perception, dating back to the days of the reactionary Lord Goddard, of judges as bulwarks of the conservative status quo has become obsolete."¹⁰⁶	74
Moreover, with particular reference to the themes of this paper, there also occurred a pronounced shift from the mid-century position when judges were robustly restrained by successive Lord Chancellors from speaking out on general matters, to a more relaxed approach to judicial neutrality by 1987. British judges would no longer be obliged, as had hitherto been the case, to maintain a monk-like existence in respect of everything they did, apart from their formal judicial duties, and to isolate themselves from the world around them. In effect the doctrine of judicial neutrality in the United Kingdom had undergone a paradigmatic transformation. For whereas it had been the case in the 1950s that a judge who had voiced his opinion outside the courtroom on any matters, whether general or legal, was deemed thereby to have threatened the independence of the judiciary, from the 1980s the judicial model was self-reliance and self-regulation.	75
Indeed, instead of invoking as one's guide to judicial neutrality the words of Francis Bacon, Lord Chancellor from 1618 to 1621, who had warned that, ".... an over-speaking judge is no well-tuned cymbal," one ought, perhaps, to absorb the observation of Brennan C.J., Chief Justice of Australia, that, ".... in the ultimate, judicial independence rests on the calibre and the character of the judges themselves."¹⁰⁷ As Lord Mackay himself pointed out in respect of judicial free speech, the independence of the judiciary also meant their independence from the Lord Chancellor.¹⁰⁸	76

Conclusion
This study of the judicial neutrality doctrine in mid-twentieth century England and Wales, drawing attention to the Russell case, to the Kilmuir rules, and to other instances of restrictions on judicial free speech, leads to a number of conclusions. First it is suggested that the public utterance prohibition, as advanced by successive Lord Chancellors at the time, mirrored the distinctive "political" approach to judicial reasoning advanced by those selfsame Lord Chancellors. Judicial conservatism therefore reinforced, and was reinforced by, the rules confining judicial speech only to that which was properly required in order to find or apply the law. Thus in respect of the Russell affair, the British government's hostility to the publication of the book can be explained narrowly (or formally) in terms of Lord Simonds's rigidly upholding the constitutional principle of judicial independence in Britain, a standpoint which perhaps implied keeping the judiciary vacuum-sealed both from policy-driven judicial reasoning and from the political issues of the day; indeed from recent historical issues which might possess a contemporary resonance. Adherence to this aspect of the separation of powers doctrine, designed to discouraging encroachments into the field of politics by the judiciary, would therefore also explain the watchful eye over the bench maintained by Jowitt, Simonds, and Kilmuir during their occupancy of the Woolsack.	77
Second, the effectiveness of a policy of total prohibition was always liable to be questioned (even if the policy itself was not yet forlorn) whenever judges consciously stepped outside the approved boundaries. Indeed the problem with an all-embracing judicial neutrality doctrine favored in the 1950s was that, even if a formal vow of silence applied to all the judges all of the time, judicial "politics" might be implicit in some circumstances, for example, if the judge were engaged in determining legal remedies for the "underdog" or ascertaining the appropriate disposal of a prisoner. Perhaps, as at least one Lord Chancellor (Jowitt) had complained, the boundary was also in danger of being crossed (as Lord Chancellors saw it) when judges were invited to deliver guest lectures (or were suggested as potential contributors to United Nations year books), though it may be conceded that the "problem" was likely to be Denning.	78
Third, while it is suggested that the sequence of incidents over the period under scrutiny, involving Gaman, Lloyd-Jacob, the Welsh magistrate, and the aborted BBC radio program could be viewed as, at most, a gnawing away at the foundations of the policy or could even be dismissed as pin pricks directed against the Lord Chancellors, the confrontation over The Scourge of the Swastika perhaps left a more powerful legacy inherited by the judiciary of the modern era. It is not that the affair led directly to the Mackay reforms. The point is, rather, that as a maverick pioneer (like the tyro Mr Justice Denning in 1947) and as a self-ascribed martyr to his cause, Russell pointed the way, in the most public of fashions, towards a climate in which, in the fullness of time, judges' opinions on events in the world outside the court room were as entitled to be heard as those of any other citizen. In other words, our third conclusion is that a golden thread ran from the confrontation over The Scourge of the Swastika to the Mackay reforms. Undoubtedly other hands and influences were involved, and made their contribution long after memories of the affair in 1954 had receded. However, the result was the creation of a new pattern of judicial free speech woven by the late 1980s.	79
And as to the fourth point, the incidents cited in this paper, not least the Russell case itself, may serve as illustrative of a major difficulty surrounding British constitutional doctrines. For, as Geoffrey Marshall once observed,¹⁰⁹ "All conventions and many other rules of behavior share this characteristic, namely that what they require in some central and clear cases is known but what they require in more marginal or arguable cases cannot be stated in advance." It is a view that chimes well with recent writings on British constitutional law theory pointing to the fluidity rather than to the rigidity of the doctrines of the separation of powers and judicial independence. For, as Woodhouse has argued,¹¹⁰ "The problem here is that the separation of powers, along with related principles such as the rule of law and judicial independence, are paraded as givens when in truth they are subject to a range of interpretations which can be used to limit or extend the judicial role." For one feature of the United Kingdom's unwritten constitution is that it encourages a perhaps insecure sense of territorial integrity, which is "concerned with status, demarcation lines and constitutional boundaries, the impression of which invariably produces tension between judges and politicians...."¹¹¹ Thus it should occasion no great surprise that the role of the judiciary in Britain can undergo shifts over time in relation to the other branches of government. Perhaps, therefore, Russell's actions and Simonds's response thereto can be understood not simply in terms of the book's potential impact on Anglo-German relations at the time, but as part of the testing of the uncertain boundaries of United Kingdom constitutional doctrine on judicial independence.¹¹²	80
To that extent the incidents recounted here might be seen as formative stages in the gradual mutation of the judicial neutrality doctrine. It is not, of course, claimed that the personnel involved were directly responsible for (or in every case desired) the radical change in the ground rules announced in 1987. Similarly, to claim that the episodes amounted to a compelling force for change would be an exaggeration. On the other hand, that both the Russell affair and the BBC controversy (and especially the former) succeeded in concentrating minds powerfully on both sides of the debate is distinctly possible. However, in the end, it can be claimed that the controversies discussed in this paper, and the possibilities for change that at least some of them exposed, formed an important background to the doctrinal and social developments in the legal landscape commencing from the 1960s, developments which in turn culminated, for our purposes, in the judicial reform of 1987.	81
Perhaps something more determinist occurred; that lying below the surface of constitutional doctrines, some kind of tectonic pressure brought about by the force of events (and not necessarily the exposure of "contradiction," especially in a Marxian sense), must be experienced before a relaxation is introduced. Thus in the Russell case the ferocious rift with Simonds and to a lesser extent the patronizing, even humiliating, attitude struck the following year by Kilmuir (likened, perhaps, to a headmaster chastising naughty schoolboys) represented a clear fissure which wove its way through a constitutional doctrine whose boundaries, because they could never be precise, were always (and perhaps continue to be) liable to fluctuation. In other words, the dramas of 1954–1955, in conjunction with both legal and social developments from the early 1960s, resonated with the 1980s and beyond.	82
Gerry R. Rubin is Professor of Law, Kent Law School, University of Kent, Canterbury, UK <GerryRRubin@aol.com>. The author expresses his gratitude to the editor and to the anonymous referees in respect of their insightful comments and helpful advice. Notes ^1.� Lord Russell of Liverpool, The Scourge of the Swastika (London: Cassell & Co, 1954). ^2.� See <www.unhchr.ch/html/menu3/b/h_comp50.htm>. ^3.� The terms "concept," "precept," "principle," and even "political rhetoric" may be found in the literature. As to "convention," Marshall has observed that a "concise enumeration of [conventions] is not easy to make since they shade off into what might be called 'traditions,' 'principles,' and 'doctrines.' (We might speak, for example, of ... the principle ... of judicial independence ...)." See Geoffrey Marshall, Constitutional Conventions (Oxford: Clarendon Press, 1986), 3. While throughout this paper we will refer to the principles of judicial neutrality and judicial independence, the former seems more apposite to this study. ^4.� The UN's Basic Principles state that, "The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary." The Constitutional Reform Act 2005, s. 3, covering England and Wales, now imposes a statutory duty on the government to maintain judicial independence. ^5.� In respect of financial bias, the classic authority is Dimes v. Proprietors of Grand Junction Canal (1852), 3 HL LC 759 (judicial shareholding). For the controversy over Lord Hoffman's connection with Amnesty International during the Pinochet arrest and extradition hearings, see R. v. Bow Street Magistrate, ex parte Pinochet Ugarte (No. 2) (2000), 1 A.C. 119. See also Porter v. Magill (2002), 2 A.C. 357 and Locabail (UK) Ltd v. Bayfield Properties Ltd (2000), Q. B. 451. For discussion of recent controversies see Diana Woodhouse, "The Office of Lord Chancellor," Public Law, (1998): 628–9; Kate Malleson, The New Judiciary (London: Dartmouth Publishing, 1999), 50; and Scott Crichton Styles, "Judicial Opinions and Judicial Impartiality," Juridical Review, (2007): 293–314. For the thesis that the judiciary in Britain are inherently political when they adjudicate, see the classic work by J. A. G. Griffith, The Politics of the Judiciary, 5th ed. (London: Fontana Books, 1997). ^6.� Following the Constitutional Reform Act 2005, the Secretary of State for Constitutional Affairs (the nonjudicialized Lord Chancellor wearing a different hat) appoints judges after recommendations from an independent committee. The old closed and secret system of "soundings" taken by the Lord Chancellor has been abandoned. Cf., new proposals in a Ministry of Justice consultation paper, The Governance of Britain: Judicial Appointments, Cm. 7210, October 2007. The paper scarcely touches upon provisions regarding the removal of judges. ^7.� Cf., whether particular religious beliefs might disqualify a judge from presiding over cases involving, say, abortion, the legality of switching off life-support machines, or discrimination on grounds of religious belief. When Pope Pius XII was thought to have stated in 1949 that Roman Catholic judges could not grant civil divorces, Lord Chancellor Jowitt threatened to refuse to appoint more Catholics to the bench until clarification had been obtained that the remarks would not have that effect. See Robert Stevens, The Independence of the Judiciary: The View from the Lord Chancellor's Office (Oxford: Oxford University Press, 1993): 86–8. ^8.� For most of the period covered by this paper, there were no female judges. ^9.� See the House of Lords report at <www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/7012402.htm>. ^10.� His celebrated ruling in the High Trees case was delivered in 1947 before his elevation to the Court of Appeal the following year. See his own discussion of the case in Lord Denning, The Discipline of Law (London: Butterworths, 1979): 203–5. ^11.� Note 9, above. For the expose of judicial autonomy see, for example, Griffith, Politics of the Judiciary, discussed in Graham Gee, "The Political Constitutionalism of J. A. G. Griffith," Legal Studies, 28 (2008): 20–45, and Carol Harlow, "Disposing of Dicey: From Legal Autonomy to Constitutional Discourse?" Political Studies, 48 (2000): 356–69. ^12.� A reference to a dissenting judgment of Lord Denning's in the Court of Appeal decision in Candler v. Crane, Christmas & Co. (1951), 2 K.B.164 when he contrasted the competing approaches of his own judicial activism with the majority's judicial conservatism. ^13.� R. F. V. Heuston, The Lives of the Lord Chancellors, 1940–1970 (Oxford: Clarendon Press, 1987): 122. Denning's dissenting judgment was eventually endorsed in Hedley, Byrne & Co. Ltd. v. Heller & Partners Ltd. (1964), A.C. 465. ^14.� Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (London: Weidenfeld & Nicolson, 1979): 340. Stevens adds that in at least two major rulings Jowitt had indulged in an "excess of judicial legislation." The first was the notorious ruling in Joyce v. Director of Public Prosecutions (1946), A.C. 347, extending the law of treason to those non-British citizens obtaining by false declaration a British passport. Thus was William Joyce, Lord Haw-Haw, sent to the gallows for treason, notwithstanding that he was technically an American. The second was a leading case on tax law, British Transport Commission v. Gourley (1956), A.C. 185. ^15.� Stevens, Law and Politics, 341–54; Heuston, The Lives, esp.152–4. ^16.� A later Lord Chancellor, Lord Hailsham, would complain that, "The trouble with Tom Denning is that he is always remaking the law, and we shall never know where we are." See Joshua Rozenberg, "Lord's Century: Denning at 100," January 23, 1999, at <www.bbc.co.uk/1/hi/uk/260718.stm>. ^17.� For his own sudden removal as Lord Chancellor in 1962, see Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London: Weidenfeld & Nicolson, 1964): 323–4. ^18.� Lord Moran, Winston Churchill: The Struggle for Survival, 1940–1965 (London: Sphere Books, 1966): 631, 637. Moran was Churchill's distinguished physician. ^19.� See David Maxwell Fyfe, "The State, the Citizen and the Law," Law Quarterly Review, 73 (1951): 172, cited in Stevens, Law and Politics, 421n. ^20.� Ibid: 424. An approach based on "rugged simplicity" appealed to him. See London County Council v. Wilkins (1957), A.C. 362, at p. 370, cited in ibid. ^21.� Heuston, The Lives, 175. His rulings revealed no clear pattern though he occasionally welcomed judicial lawmaking as in the trade union case of Bonsor v. Musicians' Union (1956), A.C. 104. For a heavily criticized ruling by him on the mens rea for murder, see Director of Public Prosecutions v. Smith (1961), A.C. 290. ^22.� The 1934 Act was subsequently replaced by the Courts Act 1971, s. 17(4). For earlier periods see Patrick Polden, A History of the County Court, 1847–1971 (Cambridge: Cambridge University Press, 1999): 261–3. The absence of a procedure for investigating and removal was rectified in the Constitutional Reform Act 2005, s. 108. For magistrates the provisions were contained in the Justices of the Peace Act 1948. ^23.� The provision is now contained in the Supreme Court Act 1981, s. 11(3). ^24.� See [National Archives, Kew, London] LCO2/5911, "Views of Text Book Writers as to the Possibility of Removal of Judges by the Crown for Misconduct in Addition to Removal on Address by both Houses," no date, c. September 1953. Doubts on the matter have almost certainly been removed by virtue of the judicial independence provision in the Constitutional Reform Act 2005, s.3. See note 4, above. ^25.� As a result of the Constitutional Reform Act 2005, the Lord Chancellor, as noted, no longer holds judicial office nor is head of the judiciary in England and Wales. The Lord Chief Justice now assumes these responsibilities as President of the Courts. As a member of the government, the Lord Chancellor as head of the Ministry of Justice is now responsible both for the administration of the courts and for ensuring that the infrastructure exists to enable the judiciary to fulfil their roles appropriately. ^26.� The possibility that prior to the 2005 Act the dismissal by the Lord Chancellor of an inferior judge on grounds of misbehavior would have been procedurally flawed was recognized by Lord Chancellor Hailsham. See Lord Hailsham, A Sparrow's Nest: The Memoirs of Lord Hailsham of Marylebone (London: Collins, 1990): 430. His suggested remedy, involving the creation of a disciplinary committee composed of fellow judges, was apparently rejected. Cf., Article 6 of the European Convention on Human Rights (ECHR) that guarantees trial by an independent and impartial tribunal. The convention is now incorporated into domestic law under the Human Rights Act 1998. ^27.� Unless otherwise noted the following is taken from the correspondence in LCO4/273. ^28.� [Copy in] FO371/109733, Coldstream to Russell, August 4, 1954. The letter was cited in the Daily Express, August 11, 1954, and was presumably passed by Russell to the newspaper's defense and security journalist, Chapman Pincher. He and Russell were friends and neighbors. At the time there were delicate political discussions over German inclusion within a "European Defence Community" (EDC), a defensive alliance against the Soviet bloc. The EDC was especially favored by the Americans, while the French and British positions on the issue were complicated. The idea was stillborn at the end of August 1954, though hardly because of the publication of The Scourge of the Swastika. There was a clear hint in the letter that if publication went ahead, Russell would face dismissal for misconduct. Inevitably Russell contested the points regarding expressions of opinion. See his resignation letter in LCO4/273, Russell to Simonds, August 8, 1954. Russell's autobiography also contains a repudiation of Simonds's complaint. See Lord Russell of Liverpool, That Reminds Me (London: Cassell, 1959): 218–20. ^29.� Cf., the Cabinet Secretary, Sir Edward Bridges's, suggestion that the prohibition on publication by public officials (and by judicial officers) should relate only to "political" and not to "public" controversy (a distinction which Simonds might not have shared). However, for Bridges, the latter meant cricket and the like! See LCO4/273, Bridges to Coldstream, October 14, 1954. For Commons exchanges on the Russell affair see House of Commons Debates [henceforth H.C. Deb.], October 19, 1954, cols. 1029–30, and October 25, col. 211. ^30.� See, for example, Daily Mail, August 11, 1954; Daily Herald, August 11, 1954; Daily Express, August 11, 1954. ^31.�Star, August 11, 1954. ^32.�Observer, August 15, 1954; Manchester Guardian, August 19, 1954. ^33.� A copy of the rules and comment thereon by A. W. Bradley is in Public Law (1986): 383–6, and in Rodney Brazier, Constitutional Texts (Oxford: Clarendon Press, 1990): 596. The release of the letter does not appear to have been discussed in parliament or in the legal press at the time and is not referred to in Kilmuir's autobiography, above. No departmental documentation in the LCO class at the National Archives dealing with the release of the rules has been discovered. ^34.� In 1989 a Crown Court judge who had been highly critical of the Kilmuir rules and who frequently clashed with Lord Mackay even after their abolition explained to the media why he had sentenced a witness to seven days imprisonment for contempt of court after she had refused to testify against her ex-boyfriend, charged with assaulting her. See His Honour Judge Pickles, Judge for Yourself (London: Coronet, 1992): 154–55, 260–1. See also ibid., 243–50 reproducing a critical newspaper article he wrote on the Kilmuir rules. ^35.� Assuming that these were among the judges to be discussed. ^36.� Lord Justice Denning, "Reform of Equity," in Law Reform and Law Making: A Reprint of a Series of Broadcast Talks (Cambridge: W. Heffer & Sons, 1953): 31. ^37.� Three academic members of the Law Reform Committee created by Jowitt, Professor E. C. S. Wade of Birmingham University, Professor A. L. Goodhart of Oxford University, and R. E. Megarry (Inns of Court), were permitted by Simonds to participate in a BBC radio programme in 1952 on topics not specifically earmarked for investigation by the committee. See LCO2/5404. On the future Megarry, J., see below. ^38.� LCO33/76. ^39.� The departmental file shows that the actual words used were reported differently in different newspapers. The gist remained the same. Perhaps the most damning, according to the Lord Chancellor, was a newspaper report of the magistrate having declared, "If we are going to get legislation of that sort, I am not going to play ball." This of course was taken by Jowitt to mean that the lay judge, Colonel Davies-Evans, was refusing to enforce the Act, which was different from criticizing it and imposing a token fine. ^40.� H. C. Deb., March 14, 1949, col. 1727–9. When the matter was later debated in the Commons, the Attorney-General, Sir Hartley Shawcross, sought to explain that the Lord Chancellor would not dismiss a magistrate merely because he or she had made an honest mistake or had exercised discretion in a wrong or foolish manner. Nor would he dismiss a justice on account of some isolated intemperate criticism of the policy underlying a statute. However, if that dislike were to influence the magistrate's administration of the Act then that went to the root of the functions of the magistracy and removal would be in order. See H. C. Deb., May 16, 1949, col. 221 et seq. See also Law Times 207 (May 27, 1949): 303–4 ^41.� LCO33/76, Hogg to Jowitt, March 7, 1949. ^42.�Daily Graphic and Daily Sketch, February 26, 1949. ^43.� As the Justice of the Peace periodical noted, "....it is [a magistrate's] right, if not his duty, to follow the example of the superior courts in criticizing legislative enactments he has to enforce, where these, in his opinion, are inappropriate either to the offence or to the offender." This was not of course a call for the refusal to enforce bad laws. See Justice of the Peace, 113 (March 5, 1949): 153. ^44.� Stevens, The Independence of the Judiciary, 90. ^45.� Pat Polden, "Judicial Independence and Executive Responsibilities: The Lord Chancellor's Department and the County Court Judges, Part II: Executive Influence on Judicial Behaviour," Anglo-American Law Review 25 (1996): 138–40. The County Courts Act 1919 permitted the Lord Chancellor to extend a judge's period in office for a further three years after reaching the then retirement age of 72 if this was in the public interest. Simonds construed the "public interest" only in a judicial, not in a governmental, sense. ^46.� Simonds himself, in his judicial capacity, is strongly associated with the famous (or notorious) judgment in the "Ladies Directory" case, Shaw v. Director of Public Prosecutions (1962), A.C. 220, whereby the House of Lords created a new offence of conspiracy to corrupt public morals. Simonds proclaimed it the duty of the criminal courts to guard the moral welfare of the state. ^47.�The Times, March 14, 1950; H. L. Deb., Vol. 166, March 14, 1950, cols. 190–1; H. C. Deb., Vol. 472, March 16, 1950, cols. 1222–4; Law Journal 100 (March 24, 1950): 160. The judge declared, "I do not know, nor am I particularly concerned, whether statistics of crimes of violence throughout the country have decreased or not since the abolition of corporal punishment in September 1948, but as one of those who has perhaps only too much experience of the administration of the criminal law, I do know that the degree of violence in these cases, whether against women or men, old or young, is more brutal and cruel now than it ever was." Jowitt, in the Lords debate (above), confessed he did not follow Streatfeild's distinction between facts and statistics. ^48.� For this and subsequent discussion, see Fenton Bresler, Lord Goddard (London: Harrap, 1977): 225–34; also Arthur Smith, Lord Goddard: My Years with the Lord Chief Justice (London: Weidenfeld & Nicolson, 1959). ^49.� Bresler, Lord Goddard, 229–30. For a recent reference see the Guardian, May 22, 2002 (supplement). ^50.� As a cross-bencher in the House of Lords, Goddard was free to participate in parliamentary debates and did, indeed, forcefully contribute to the debate on the issue in October 1952. In February 1953 the Commons strongly voted against a private member's bill to restore corporal punishment, which apparently terminated his public utterances on the subject. ^51.� LCO2/5923; Stevens, Independence of the Judiciary, 90. The lengthy letter appeared in The Times, May 11, 1954. In fact the phrase, "a deplorable incursion by a High Court Judge into the realm of controversial politics" was Hailsham's. The latter had complained to Simonds shortly after Lloyd-Jacob's letter had been published, and the Lord Chancellor had simply borrowed the passage. See LCO2/5923, Hailsham to Simonds, May 14, 1954. See also LCO2/5923, Lloyd-Jacob to Simonds, May 19, 1954. ^52.� Whether it was this incident which stopped Lloyd-Jacob's promotion to the Court of Appeal and beyond is unclear. He was still chairing commissions of inquiry after 1954 (on monopolies policy and on the ecclesiastical courts) but had offered to resign from the bench in 1956 (as he had done in 1952) to join a foundation. See LCO2/6355, LCO2/5159, and LCO2/5160. For the public expression of opposition by a magistrate in Cornwall in 1957 to Britain's nuclear test policy, similar in some ways to Lloyd-Jacob's position, but which did not lead to dismissal or to disciplinary action, see LCO33/83. Numerous instances of magisterial misconduct can be found in the departmental papers. ^53.� It was not unknown for judges, while still sitting on the bench, to publish their collected speeches on various legal and nonlegal topics. See, for example, Lord Hewart, Essays and Observations (London: Cassell, 1930), and his later collection, Not Without Prejudice (London: Hutchinson, 1937). Hewart was a long-serving and controversial Lord Chief Justice. See below. ^54.� That is, the judicial House of Lords wearing its other hat as the appeal court from Commonwealth jurisdictions. See The Times, July 21, 28, 1955. Radcliffe himself published The Problem of Power (Reith Lectures, 1951) and The Law and Its Compass (Rosenthal Foundation Lectures, 1960) while still serving on the bench. ^55.� Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965). For brief discussion of the debate see Helen J. Self, Prostitution, Women and Misuse of the Law: The Fallen Daughters of Eve (London: Frank Cass, 2003): 189–94. ^56.� Various editions of works published under his name subsequently appeared, though it is fair to point out that the period in question was after that of Simonds and Kilmuir. ^57.� Lord Hewart, The New Despotism (London: Ernest Benn & Co., 1929). ^58.� Robert Jackson, The Chief: The Biography of Gordon Hewart, Lord Chief Justice of England, 1922–40 (London: George G. Harrap & Co. Ltd., 1960): 216. For the "bureaucratic triumph" of the Donoughmore report, see A. W. Brian Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Oxford: Clarendon Press, 1992): 59. ^59.� Rodney Brazier, Constitutional Practice, 2nd edition (Oxford: Clarendon Press, 1994): 283. ^60.� Jackson, The Chief, 214. ^61.� LCO4/273, Boggis-Rolfe to MacGeagh, December 6, 1951. Boggis-Rolfe was the department's establishment officer. ^62.� This office holder generally disposed of issues, such as costs and other applications, in chambers. ^63.� The LCO permanent secretary, Sir Albert Napier, had forbidden his own staff from contributing articles to law journals and magazines. ^64.� The recruitment by the executive of members of the judiciary in order to undertake, sometimes in public, inquiries of a highly political and sensitive nature is not examined in this paper. It may be noted, however, that such practice, while not perceived as a breach of the principle of judicial independence, nonetheless may present the "danger that the process itself will be seen as political and that the judges will be perceived as instruments of the executive, thereby casting doubt on their independence." See Diana Woodhouse, The Office of the Lord Chancellor (Oxford: Hart Publishing, 2001): 33. A number of the judges cited in this study, including Lords Goddard and Radcliffe, presided over such inquiries. Problems may arise where the judge's report is widely seen as a whitewash of the executive or as covering up other dark secrets. Denning's Profumo inquiry in 1963 and the inquiry into the "Bloody Sunday" shootings in Londonderry in 1972 conducted by Lord Chief Justice Widgery are among the most "notorious" examples. One of the post-Iraq war inquiries in the United Kingdom, presided over by Lord Hutton, has been heavily criticized. ^65.� The Rt. Hon. Lord Simonds, "Liberty Within the Law: The Lord High Chancellor's Address," American Bar Association Journal 38 (1953): 1060–2; 1114–17. ^66.� H. Montgomery Hyde, Norman Birkett: The Life of Lord Birkett of Ulverston (London: Hamish Hamilton, 1964): 554, 551. ^67.� FO371/103552, note by I. C. Alexander, June 30, 1953. He was also furnished with a copy of Maxwell Fyfe's [that is, Kilmuir's] "excellent speech to the Association of American Correspondents" as well as a briefing from the Foreign Office's anti-communist propaganda unit, the Information Research Department. ^68.� Thus while he had agreed to speak to the Society of Public Teachers of Law conference in Belfast in September 1957 on the subject of law reform, it was clearly not improper for Lord Chancellor Kilmuir also to address a "Young Ulster Group" during the same visit on "the dangers of Socialism." See Belfast Newsletter, September 19, 1957; The Times, September 20, 1957; LCO2/5689. ^69.� His judgment in the "Ladies Directory" case can, however, be cited as an instance of repressive judicial law making. See note 46, above. ^70.� It probably concerned the case of Captain G. S. L. Griffiths who faced two courts martial in quick succession between 1953 and 1954 on charges of murder and cruelty in respect of alleged Mau Mau detainees. Coincidentally, Russell was judge advocate during Griffiths's second trial in Nairobi. See G. R. Rubin, Murder, Mutiny and the Military: British Court Martial Cases, 1940–1966 (London: Francis Boutle Publishers, 2005): 279–94. ^71.� CAB128/27, CC.4(54)7, January 21, 1954. ^72.� CAB129/65, C.(54)27, January 25, 1954, "The Attorney-General and Public Prosecutions," January 25, 1954. ^73.� The author added that the "intervention of the Lord Chancellor, with respect to an office he had never occupied, was extraordinary." See John Ll. J. Edwards, The Attorney-General, Politics and the Public Interest (London: Sweet & Maxwell, 1984): 322n. ^74.� For the correspondence between Simonds and Heald in respect of the issue, see LCO2/5106. ^75.� LCO2/5911. ^76.� The timing is partly ironic given that the events occurred shortly after the United Kingdom had been in the forefront of the drafting of the ECHR, an international treaty that it ratified in March 1951. See A. W. Brian Simpson, Human Rights and the End of Empire (Oxford, Oxford University Press, 2001).There was no right of individual petition until 1966. For its later incorporation into domestic British law, see note 26, above. ^77.� See Lord Justice Denning, "The Independence of the Judges," Holdsworth Club Presidential Lecture, Birmingham University, June 16, 1950, 1. ^78.� For the difficult relationship between Simonds and Denning, see Heuston, The Lives, 152–4. Drawing an analogy with a previous unfortunate Master of the Rolls, Thomas Cromwell, who had been beheaded during the reign of Henry VIII, Denning later admitted having been verbally beheaded by Simonds. See Lord Denning, The Family Story (London: Butterworths, 1981): 202. ^79.� Like the Holdsworth lectures the Hamlyn lectures continue as a most distinguished series to this day. ^80.� LCO2/4617, Jowitt to Denning, December 7, 1949. ^81.� Ibid., Denning to Jowitt, December 12, 1949. ^82.� See Malleson, The New Judiciary, 2 for this description. ^83.� Ibid., 233. ^84.� See note 25, above, for the current role of the Lord Chancellor. ^85.� See note 9, above. His view regarding the approval of the judges for abolition of the rules contrasts with Hailsham's claim that the overwhelming majority of the judges during the latter's second tenure as Lord Chancellor (1979–87) wished to retain the rules. See Hailsham, A Sparrow's Flight, 431. ^86.� Lord Woolf, "Should the Media and the Judiciary be on Speaking Terms?" at <www.dca.gov.uk/judicial/speeches/lcj221003.htm>, at 8 of 9. It is likely that he was referring to Judge Pickles. See note 34. See also Judge James Pickles, Straight from the Bench: Is Justice Just? (London: Coronet Books, 1988). After various exchanges with Mackay, Pickles retired in 1991. ^87.� For suggestions as to the origins of the judicial review shifts from the 1960s see Lord Greene M. R.'s doctrine, formulated in 1948, of (unlawful) "unreasonableness" on the part of a public authority in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, (1948), 1 K.B. 223, at 229. The judiciary's shift in the direction of a more protective role towards the citizen vis-à-vis the executive has also been traced to the political fall-out from a celebrated controversy, the Crichel Down affair (1954), involving a culpable failure by a government department to restore requisitioned land to its owners after the war. Thus it has been suggested that the affair, which also led to the minister's resignation, caused a loss of judicial confidence in public administration, prompting the judiciary to assume a more interventionist approach towards administrative law in order to protect the citizen. See Diana Woodhouse, "Review Article [of Robert Stevens, The English Judges: Their Role in the Changing Constitution (Oxford, Hart Publishing, 2002)]," Modern Law Review 66 (2003): 928, citing Sir Stephen Sedley, "The Sound of Silence: Constitutional Law Without a Constitution," Law Quarterly Review 110 (1994): 271. See also I. F. Nicholson, The Mystery of Crichel Down (Oxford: Oxford University Press, 1986). The real breakthrough in administrative law is generally recognized as being the case of Ridge v. Baldwin (1964), A.C. 40, concerning the dismissal of the Chief Constable of Brighton, and decided ten years after Crichel Down. ^88.� For Jennings, "It is democracy and not merely the separation of powers that keeps Britain free.... Still less must it be assumed that it is possible to distinguish by analysis 'legislative', 'executive', and 'judicial' powers. Montesquieu made no nice distinctions, and none of his successors has been successful in drawing them. It is accepted by a large body of expert opinion that they cannot be drawn.... There is no single characteristic or group of characteristics which enables the legislature to determine out of hand that a particular function should be assigned to judges or, in other words, which distinguishes the 'judicial' class of functions." See Sir Ivor Jennings, The Law and the Constitution, 3rd ed. (London: University of London Press, 1943): 24. For Allen, "We shall not expect, then, to find the elegance of consistency or the precision of dogma in our distribution of governmental functions.... [T]he picture has often been confused by attempts to read into our constitution a rigidity of design which from its very nature it could never have possessed." See C. K. Allen, Law and Orders: An Inquiry into the Nature and Scope of Delegated Legislation and Executive Powers in English Law, 3rd ed. (London: Stevens & Sons, 1965): 5. ^89.� A. V. Dicey, Law of the Constitution, 10th ed. (London: Macmillan, 1959). With particular reference to public law, the theory assumes that the judiciary eschew the development of administrative law remedies as a device to ensure "fairness," let alone sanction the creation of a formal system of droit administratif. ^90.� See note11, above. ^91.� As it was peculiarly practiced in Britain, most notably where government ministers (the executive) were also members of the legislature. The even more anomalous position, until recently, of the Lord Chancellor, has previously been noted. ^92.� Cf., Patrick Devlin, "The Judge as Lawmaker," in The Judge, ed. Patrick Devlin (Oxford: Oxford University Press, 1979), 1–17, where Devlin expresses qualified support for a limited form of judicial activism. ^93.� Authority for these broad statements can be found in various sources including Louis Blom-Cooper and Gavin Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity (Oxford: Clarendon Press, 1972); Stevens, Law and Politics; Alan Paterson, The Law Lords (Macmillan, 1982). For recent developments see David Robertson, Judicial Discretion in the House of Lords (Oxford: Clarendon Press, 1998). ^94.� Blom-Cooper and Drewry, Final Appeal, 12–13. ^95.� Ibid., 13. ^96.� A celebrated statement to an academic audience in 1972 is from Lord Reid. "There was a time when it was thought almost indecent to suggest that judges make law—they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's case there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge had muddled the password and the wrong door opens. But we do not believe in fairy tales any more." Cited in Stevens, Law and Politics, 621; also in Malleson, The New Judiciary, 50. ^97.� Of course Lord Denning had been doing this from the late 1940s, no doubt commencing with his High Trees judgment. See note 10, above. ^98.� Formative cases were Ridge v. Baldwin (1964), A.C. 40 (noted previously); Padfield v. Minister for Agriculture (1968), A.C. 997; and Anisminic Ltd v. Foreign Compensation Commission (1969), 2 A.C. 147. The term "Crown privilege" in Duncan v. Cammell, Laird & Co. Ltd (1942), A.C. 624 gave way to "public interest immunity" by the time of Conway v. Rimmer (1968), A.C. 980. ^99.� The litigant-friendly procedural changes approved in O'Reilly v. Mackman (1983), 2 A.C. 237 were critical. See also Council of Civil Service Unions v. Minister for the Civil Service (1985), A.C. 374. ^100.� See Robert Stevens, "A Loss of Innocence? Judicial Independence and the Separation of Powers," Oxford Journal of Legal Studies 19 (1999): 393. Cf., Lord Nolan, cited in Malleson, The New Judiciary, 19. ^101.� An exploration of those changing aspects of postwar British social history potentially influencing the doctrinal changes noted above is outside the scope of this paper. However it would presumably seek to ask whether the United Kingdom has become a more open, diverse, egalitarian, and liberal society from the 1960s in place of an alleged class-based, stifling, traditionalist, authoritarian, repressed, ingratiatingly deferential, and indeed conscripted era just emerging from the greyness of the Second World War. Alternatively such an investigation might ask whether the 1950s in Britain were a golden age of innocence, community, loyalty, respect, and family values which could be said to contrast sharply with today's allegedly brash, hedonistic, and disordered British society lacking a moral compass and of a sense of value and identity. Recent studies include Peter Hennessy, Having It So Good: Britain in the Fifties (Harmondsworth: Penguin Books, 2007); Dominic Sandbrook, Never Had It So Good (London: Little, Brown, 2005); and Dominic Sandbrook, White Heat: A History of Britain in the Swinging Sixties (London: Little, Brown, 2006). ^102.� Research on the most recent judicial appointments in 2007 seems to support this view. See Guardian, January 28, 2008. ^103.� Helena Kennedy, Just Law (London: Chatto & Windus, 2004): 140. ^104.� Predictably, Denning led the way for this "new wave" when delivering his combative Dimbleby Lecture in 1980 on the "Misuse of Power." He insisted that ultimate control of government should not rest with parliament but with the judiciary, armed with power to set aside "unconstitutional" laws. ^105.� There were glimpses of such a human rights discourse on the part of international lawyers during and in the immediate aftermath of the Nazi defeat. ^106.� John Morrison, Reforming Britain: New Labour, New Constitution? (London: Reuters, 2001): 373. As Stevens has noted, "The bench [in the 1950s] surely contained its share of scholarly, fair, and decent men. It also had more than its share of cantankerous, prejudiced, intimidating, and boorish judges.... [They] were, with rare exceptions, accustomed to deference and sycophancy.... [By contrast] England today has a remarkably competent judiciary, marked by a bench the overwhelming majority of whose members are gracious, scholarly, imaginative, and fair compared with the 1950s." See Stevens, The English Judges, 37–8. ^107.� Both cited in The Hon. John Doyle, Chief Justice of South Australia, "The Well-Tuned Cymbal," address to the Australian Judicial Conference, Canberra, November 2, 1996, at <www.judcom.nsw.gov.au/fb/fbdoyle.htm.> In fact it was Lord Denning who had previously referred to Bacon's "over-speaking judge as no well-tuned cymbal," in Jones v. National Coal Board (1957), 2 Q.B. 55. ^108.� See note 9, above. Paradoxically, judicial liberation in respect of free speech has been accompanied by increased judicial accountability in recent years in terms of professionalized standards of performance appraisal, wider media scrutiny, and, most recently, the creation of an independent Judicial Appointments and Conduct Ombudsman who can make recommendations in respect of complaints about judicial conduct. Although the Lord Chancellor has been replaced as head of the judiciary by the Lord Chief Justice (the latter now appointed as President of the Courts of England and Wales), he still technically retains power to remove inferior judges in accordance with the procedures (including proper investigation) laid down in the Judicial Discipline (Prescribed Procedures) Regulations 2006, issued under the Constitutional Reform Act 2005, s. 108, and subject to the approval of the Lord Chief Justice to such removal. Following abolition of the Kilmuir rules, the department not only sought to advise the judiciary, especially the inferior judges, on how to deal with the media. It attempted in 1991, according to one legal journalist, to dictate when the judiciary could talk to the press including, in some cases, to the Lord Chancellor's own press office. See Joshua Rozenberg, Trial of Strength: The Battle Between Ministers and Judges Over Who Makes the Law (London: Richard Cohen Books, 1997): 50–1. Whether the instruction from the department was effective is a moot point. ^109.� Marshall, Constitutional Conventions, 211. ^110.� Woodhouse, "Review Article," 920. ^111.� Ibid. ^112.� Of course serving judges had in the past published "historical works." They included Lord Campbell (1779–1861) who published the third volume of his Lives of the Chief Justices in 1857 when he himself was Lord Chief Justice. In 1929 Sir Ernest Pollock (Lord Hanworth) published, while still Master of the Rolls, a biography of his grandfather, Chief Baron Pollock.

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Judicial Free Speech versus Judicial Neutrality in Mid-Twentieth Century England: The Last Hurrah for the Ancien Regime?

GERRY R. RUBIN

Looking Ahead

Jowitt, Simonds, and Kilmuir

The Lord Chancellor and Judicial Discipline

The Scourge of the Swastika

Kilmuir Rules

Categories of Breach of the Principle

Blatant Breaches?

Gaman, Goddard, and Lloyd-Jacob

Approved Judicial Utterances

Was the Lord Chancellor Different?

The Birkett Essay

Mackay's Revolution

New Social Paradigms and the Judiciary?

Conclusion

Notes