A qualified solicitor who has never practised, a journalist, an honorary QC, and an honorary Bencher of Gray’s Inn – Joshua Rozenberg is a man in the middle. All of this means that he presently finds himself in the unenviable position of being a member of a profession apparently distrusted by the public, and defending judges who have been branded ‘Enemies of the People’.
That title was unofficially bestowed on three senior judges by the Daily Mail in November 2016 after they ruled that Theresa May’s government had to get Parliamentary approval before pulling the trigger on Brexit. It’s also –
with the addition of a question mark – the title of Rozenberg’s new book looking at how judges make law, and whether they can maintain public trust while dealing with tricky social and political issues.
But did that infamous headline, and all the controversy, do any good for our judicial system? ‘I suppose if it encourages people to understand how the courts work, then yes,’ says Rozenberg. ‘If it encourages the courts to explain how
they work, even more so.’
Rozenberg is a proponent of more visible justice and critical of the sometimes opaque way judges choose to explain themselves, including the three who so outraged the Mail’s editor. ‘They didn’t explain the consequences of their
decision. If the court had simply said “this is a matter for Parliament”, then it would have been harder for the newspapers to depict the judges as blocking Brexit.’
Rozenberg has used what he accepts is his ‘unique position’ to try and bridge the gap between journalists and the judiciary. ‘When I talk to judges I can, to some extent, tell them how I and how other journalists see things. And I can
certainly tell them, if they’re interested, how best to present things and how best to get messages across to the public, as I have done with my book.’
Ultimately, of course, the Supreme Court did give a clearer explanation in the Brexit case, upholding the decision of the lower court and handing power back to Parliament. In these frenetic times, it wasn’t too long before the Justices of the highest
court had to weigh in again over whether Boris Johnson could prorogue Parliament to force the country out of the EU. This time, all 11 Justices spoke as one.
‘I admit that when I heard they were unanimous – when Lady Hale announced the judgment and said they were unanimous – there was a gasp in the press room of the court.’
How did they all manage to agree? ‘We assume that those who were in the minority were encouraged to support the majority. We can imagine that Lady Hale said to colleagues: it’s such a “political” decision it looks much stronger
if we’re all united,’ speculates Rozenberg, joking, ‘there was also the very practical point that anyone who wanted to write a minority judgment had only the weekend to do it and probably no one wanted the effort.’
That unity didn’t stop the controversy. There were calls for judges to be reined in and subjected to greater political scrutiny, not something Rozenberg supports. ‘I’m with the judges on this one. They are very much against the idea
of political vetting or any kind of confirmation committee hearings which I don’t think are very effective in the United States. The judges there seem very capable of avoiding the questions.’
I meet Rozenberg virtually, using the medium which has become a way of life for so many of us: the video call. He sits in his modernist apartment in Jerusalem where he has been locked down with his wife, the writer and broadcaster Melanie Phillips. When
we speak, Rozenberg is sitting in one glass-walled ‘pod’ with Phillips visible behind him across a wide hallway in her own glazed sanctuary. At one point she gets up and peers in to check what’s taking her husband so long. The couple
visit the city for weekends and holidays throughout the year and they found themselves there at the start of Israel’s lockdown, so that’s where they remained.
Rozenberg trained as a solicitor after university at a law firm in Richmond-Upon-Thames before he joined the BBC as a trainee in 1975, working on TV and radio programmes and rising up to become the corporation’s legal correspondent, a post he held
for 15 years before moving across to the same role at the Daily Telegraph.
His stint at the broadsheet came to an unexpectedly abrupt end in 2007 when he resigned. He had been reporting on the Al-Skeini case in the House of Lords which decided the Human Rights Act applied to the actions of the British Army in Iraq.
Rozenberg came under pressure from editors to add a line saying the claimants would be able to get millions in compensation, something he insisted simply wasn’t true. He refused but the text of his article was changed without his knowledge before
it hit the printing presses.
It might not have been noticed by many, but one judge did spot the embellishment and raised it with Rozenberg. He felt he had no choice but to go. ‘You can’t tolerate your stuff being distorted and errors being put into your copy just because
it makes it a better story,’ he says ‘and that’s why I resigned.’
Now he is his own man which, I get the impression, he always was really. He writes and commentates on legal issues for national and international outlets and continues to host the BBC Radio 4 series Law in Action. He’s also the author of
a previous book on the law of privacy.
Despite taking a principled stance, Rozenberg doesn’t think the solution to the occasional inaccurate story is for the legal profession to disengage from journalists. In fact, quite the opposite. He would encourage any legal team in a high profile
case to talk to reporters, otherwise they risk more inaccurate reporting, not less.
‘Parties are very frightened about providing the media with the documents we need. A civil case or a judicial review claim these days relies very heavily on written pleadings and skeleton arguments. So much so that counsel will start referring to
“page 2, paragraph 4” and everyone is happy because they have it in front of them, apart from the press,’ Rozenberg complains. ‘If you want to make sure your side is badly reported then it’s a good idea to annoy the press,
deny them the information that they’re entitled to, and be rude to them.’
The media may not have a lot of friends in the legal profession, or indeed amongst the public at the moment, but what about the judges? Are they the enemies of the people, or their friends? Rozenberg is clear.
‘If you’re looking for somebody to protect the country from threats, you do rely on the judges as the last opportunity to defend the public from some future undemocratic government,’ he says. ‘And you don’t have to look far
around Europe to see undemocratic governments and judges at risk.’
So Rozenberg is one journalist who will continue backing the judges from his unique position as an outsider within the legal establishment. At least when he thinks they’ve got the answer right.
Enemies of the People? How Judges Shape Society by Joshua Rozenberg was published by Bristol University Press in April 2020.