“She is constitutionally absolutely wrong”: The Lord Chief Justice on the Lord Chancellor

The Daily Mail called the judges who decided the Miller Article 50 case “enemies of the people”. What, asked the House of Lords Constitution Committee, did the Lord Chief Justice make of the Lord Chancellor’s lacklustre response to such media criticism of the judiciary?

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In his annual evidence session before the House of Lords Constitution Committee on 22 March 2017, the Lord Chief Justice, Lord Thomas, subjected the Lord Chancellor and Justice Secretary, Liz Truss, to extraordinary criticism. I use the word ‘extraordinary’ not in order to imply that anything said by Lord Thomas was inappropriate, but merely to signal how unusual it is for a very senior judge to criticise a senior Minister in such excoriating terms. But, as Lord Thomas told the Committee, this was not an occasion for ‘mincing words’. He certainly did not do that.

Lord Thomas’s remarks were prompted by a question about the stance taken by the Lord Chancellor in the immediate aftermath of the Divisional Court’s judgment in the Miller case, the judges concerned having been vilified by some sections of the press — with the Daily Mail, perhaps most notably, dubbing them the ‘enemies of the people’. The Lord Chancellor was very slow to defend the judges against such attacks; and when she did so, she was very far from fulsome in what she had to say. When recently asked about this by the Constitution Committee, she had the following to say:

I will always speak out and say how important having an independent judiciary is. I have also said that the individuals involved in both cases—the High Court and the Supreme Court—are people of integrity and impartiality, and that is very important. 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. I am a huge believer in the independence of the judiciary; I am also a very strong believer in a free press and the value it has in our society. In defending the judiciary, it is very important that I speak out about the valuable work it does. I want to work with the judiciary so that we have more from the judiciary explaining to the public the work that it does and the process of appointment, but I draw the line in saying what is acceptable for the press to print or not. For me, that goes too far.

In making these remarks, the Lord Chancellor fell into serious error in two respects. 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.

Second, in her remarks, the Lord Chancellor appears to assume that she is simply a ‘government Minister’ for present purposes. But she is not. 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]’. Judicial independence, of course, is a prerequisite of the rule of law.

It is against this background that Lord Thomas said that the Lord Chancellor’s position was ‘completely and utterly wrong’. There was, said Lord Thomas, a fundamental distinction between legitimate ‘criticism’ of judges and ‘abuse’ of them. That line had been crossed in relation to the Brexit case. The Lord Chief Justice concluded that the stance adopted by the Lord Chancellor was ‘constitutionally absolutely wrong’. A transcript of the Lord Chief Justice’s evidence has been published by the Constitution Committee. In addition, a video of the evidence session can be viewed here. Lord Thomas’s remarks on judicial independence and the Lord Chancellor begin at 10.49 am (i.e. 20 minutes in). They are well worth listening to.

The author serves as Legal Adviser to the House of Lords Constitution Committee. This post is written in a purely personal capacity.