Extra-Judicial Discourse in the United Kingdom

Judges at the highest courts of the United Kingdom engage in discourse outside of the courtroom on a regular basis. They give speeches at universities and to societies; appear before select committees of both Houses of Parliament; write for practitioner, academic and mainstream publications; and engage in a broad spectrum of media activities. Existing literature on the practice of extra-judicial discourse recognises both the value and perils of judicial communication outside of the courtroom. Extra-judicial discourse can enhance transparency, accessibility, and institutional legitimacy but can also raise questions of constitutional and professional propriety. Judges therefore face a series of ostensible constraints in their extra-judicial discourse. These limitations include principle, precedent and guides to judicial conduct which speak to the importance of inter alia maintaining the dignity of their office, impartiality, and integrity. We argue that the uniting norm, or lodestar, to these constraints is public confidence. We demonstrate this through extensive analysis of extra-judicial activity as well as through findings from semi-structured interviews with 14 current and recently retired judges at the highest courts from the three domestic jurisdictions (England & Wales, Northern Ireland, and Scotland), including both the current and former Presidents of the UK Supreme Court. While these interviews reveal a range of different conceptions of the value, purpose of propriety of judicial communication, the unifying consideration is public confidence. We conclude that beyond formal constraints of practice it is these internally defined notions of confidence which motivate and determine the shape of extra-judicial discourse.