Who will stand up for the judiciary?
A spat has erupted between the Lord Chief Justice and the Lord Chancellor over the extent of the constitutional duty of the latter to protect and defend the judiciary, of which the former is head.
Each of them has recently given evidence to the House of Lords Constitution Committee. Liz Truss, speaking as the Lord Chancellor and Secretary of State for Justice, earlier told the committee that, while she had enormous respect for the integrity of our judiciary, and was a ‘huge believer’ in their independence, she did not think that included curtailing freedom of the press.
Where perhaps I might respectfully disagree with some who have asked me to condemn what the press are writing, is that I think it is dangerous for a government Minister to say this is an acceptable headline and this is not.
She said much the same thing in her recent interview on Law in Action (see Weekly Notes — 13 March 2017). The problem is that no one was asking her to censor the press. They were asking her to fulfil her particular constitutional duty, as Lord Chancellor, to defend the independence of the judiciary. Yet last year, when called upon to do so, she was slow to respond to press attacks on the judiciary, notably by the Daily Mail in describing the Lord Chief Justice and his fellow judges hearing the Miller ‘article 50’ case in the High Court as ‘Enemies of the People’.
When it was his turn to give evidence to the committee last week, Lord Thomas of Cwmgiedd, the Lord Chief Justice, subjected Truss to what one commentator described as ‘extraordinary’ and ‘excoriating’ criticism. She was, said Lord Thomas, ‘completely and utterly wrong’ in adopting the position, when called upon to defend the judiciary against attacks in the press, that it was not for her as a government minister to censor the press.
Professor Mark Elliott, writing on his Public Law for Everyone blog, points out that
First, no-one had suggested that government Ministers should purport to wield powers of censorship by telling the press what it is and is not ‘acceptable’ for them to print. Rather, the concern was that the Lord Chancellor should have responded more promptly and more robustly to what had been printed — not by questioning newspapers’ right to publish such comments, but by rebutting them and in so doing defending the independence of the judiciary.
Secondly, as Lord Chancellor, she is not merely a government minister:
While section 3 of the Constitutional Reform Act 2005 charges all Ministers of the Crown with responsibility for upholding the independence of the judiciary, it singles out the Lord Chancellor who, uniquely, is placed under a specific obligation to ‘have regard to the need to defend that independence’. This is underscored by section 1, which affirms that the changes made by the 2005 Act do not extend to ‘adversely affect[ing]’ the Lord Chancellor’s ‘existing constitutional role in relation to [the rule of law]’.
That existing constitutional role included, of course, standing up for the judiciary.
See also, Obiter J, Law and Lawyers blog: Lord Chancellor was “completely and utterly wrong”
However, not everyone agrees that the Lord Chancellor was at fault. Penelope Gibbs, on the Transform Justice blog, (Should the judiciary speak out more?) suggested that the role of the Lord Chancellor since the Constitutional Reform Act 2005 had changed and that the strict ‘Kilmuir rules’ about judges not being able to speak out in public had been abolished.
However, she acknowledges that only the most senior judges were allowed to make speeches or speak to the press. Most district, Crown Court and High Court judges are still inhibited from speaking out, even to explain their work, partly because it is so difficult for them to get permission to do so.
When asked, in an exchange of tweets, whether that was something the Lord Chancellor should redress, she replied that it was the senior judiciary who imposed those restrictions.
However, another factor inhibiting judges from speaking out must be the hysterical reaction in the press and others (including politicians) the minute they do so, as was demonstrated yet again this week, when the Director of Public Prosecutions attacked a judge for some remarks about rape cases: see Guardian, DPP accuses judge of ‘victim-blaming’ in sex assault cases
See also what happened when HHJ Lindsey Kushner Q.C. offered constructive remarks on this topic (Weekly Notes — 13 March 2017 again).
Judicial roles reviewed
The role of the judiciary has been discussed in two recent speeches by members of the UK Supreme Court (who do seem to be allowed to speak out as much as they like). They are well worth reading in the context of what seems to be a lack of understanding — among politicians and the media, if not the general public.
Speaking In the Bahamas, while their Lordships were sitting there last month as the Judicial Committee of the Privy Council, Lord Mance discussed The Role of Judges in a Representative Democracy.
The subject was topical, in light of the recent hearings of federal courts in America on the constitutionality of President Trump’s notorious ‘travel ban’ executive order. ‘The judiciary,’ he said, ‘is the third pillar of the state’, which supports and respects but also keeps in check the other two (the legislature and the executive). Its independence — the separate of powers — is critical. He goes on to discuss the extent to which judges make the [common] law, rather than simply declare it, particularly in the context of constitutional issues and human rights. Though not (in our system) elected, they remain accountable. Hence the importance of transparency and open justice.
Lord Mance ends by quoting Judge Neil Gorsuch, who soon after his nomination for the US Supreme Court made a point of describing attacks on the judiciary as ‘disheartening and demoralising’. His words finds their echo in our own Lord Chief Justice’s disappointment with the lacklustre performance by the Lord Chancellor of her constitutional role.
More recently Lord Neuberger, President of the UK Supreme Court, delivered his Reflections on significant moments in the role of the Judiciary at a Personal Support Unit Fundraising Breakfast on 16 March.
He, too, stressed the independence of the judiciary in the context of the separation of powers, and described the rule of law as one of the two essential pillars of civilised society (the other being democracy). Judges were no longer ‘lions under the throne’, subservient to the executive: a vital function of the judiciary in upholding the rule of law was to protect the rights of citizens against the state.
Though most of the historic cases cited by Lord Neuberger showed the judiciary in a heroic light, defending the rule of law, there have been times when some of the judiciary were ‘still rather spineless’. He cites Liversidge v Anderson  AC 206 by way of example. In that case Lord Atkin alone dissented from a ruling by the Law Lords which he described in his judgment as ‘more executive-minded than the executive’ and compared their support for the Home Secretary’s interpretation of some oppressive wartime regulations as justifiable only on the authority of Humpty Dumpty (in Lewis Carroll’s Alice through the Looking-Glass). All this is apparent — all too apparent — from the law report of the case. What is less well known is the fallout:
It is said that Lord Atkin’s judicial colleagues thereafter never had lunch with him.’
[ Hmm — often wondered why that private dining area at the Garrick was known as ‘Coventry’ ]