Truss and judges: power and responsibility

Liz Truss has faced her first high-profile challenge as the statutory defender of judicial independence – and failed. Fortunately, not much damage has been done. Much more worrying is the lord chancellor’s inability to protect the judiciary’s long-term future.

The immediate challenge was newspaper coverage of the article 50 Brexit judgment, exemplified by the Daily Mail’s captioning of three senior judges who ruled against the government as ‘Enemies of the People’. Not knowing any of Truss’s advisers, I am perfectly prepared to believe that no alarm bells sounded in the Ministry of Justice bunker. After all, her team might have reasoned, the government had just lost in court. Truss is a member of the government. Why would she complain about newspapers that believed the government should have won?

So it was left to the Bar Council to remind Truss of her responsibilities under the Constitutional Reform Act 2005. That provoked a terse statement in which Truss praised the independence of the judiciary but failed to acknowledge the attack on it. Lord Judge, the former lord chief justice, thought her statement was ‘a little too late and… quite a lot too little’.

Other lawyers weighed in. In a letter to The Times, Lord Falconer called on Truss to defend the individual judges who’d been attacked. She did so the next day. Finally, a week after its explosive front page, the Mail found space on page 64 to publish a joint letter in defence of the judges from Lord Irvine of Lairg and Lord Mackay of Clashfern, whom a few of its readers will have recognised as former lord chancellors.

I happen to believe that public confidence in the judiciary is of immense importance. But I am less worried than other commentators by Truss’s response to press headlines. As she says, the High Court is unlikely to be ‘imperilled by the opinions of any newspaper’. Far from striking a chord with its readers, the Mail’s coverage – which initially included an online reference to the master of the rolls as an ‘openly gay ex-Olympic fencer’ — showed how out-of-touch it has become.

It would be much more worrying if an individual judge had been attacked by a government minister – perhaps a home secretary criticising an ‘unduly lenient’ sentence – and the lord chancellor had taken three days to come to the judge’s defence (while still supporting his ministerial colleague). That happened in 2006, leading the House of Lords constitution committee to conclude that the lord chancellor in question had not fulfilled his duty ‘in a satisfactory manner’. The same lord chancellor was also responsible for legislation that allows the prime minister to appoint pretty well anyone to the great office of state he then held. He is, of course, Lord Falconer.

On the whole, I would prefer the defence of the judges against press and public criticism to be led by the judges themselves. The lord chief justice should speak on their behalf — unless, as on this occasion, he happens to be in the firing line. In that event, a senior or retired colleague should be able to put things right.

Should the judges play safe and avoid antagonising public opinion in the first place? Of course, they must apply the law without fear or favour. But what if the issue is so finely balanced that it could go either way? Then, I think, they should be sensitive to the public interest. Before the Brexit hearing, I had thought this might tip the balance in favour of the government. But Lord Thomas and his colleagues regarded the legal issues as much more straightforward than I had thought. Their decision looks appeal-proof unless the government changes its position and argues that it can revoke notification under article 50. The last thing that would persuade the Supreme Court to allow the government’s appeal is criticism of the judges.

Much more worrying, though, is the reduction in judicial morale disclosed by the lord chief justice in his recent annual report and covered prominently in the Gazette two weeks ago. ‘There is very real concern about recruitment,’ said Lord Thomas. ‘This emerging trend needs to be reversed as a matter of urgency, together with tackling the causes of low judicial morale.’ Unprecedented difficulties, he added, included a ‘very significant fall in pay and pensions in real terms’.

Last week an employment tribunal started hearing claims brought against the lord chancellor by six serving High Court judges and more than 200 sitting in the lower courts. They argue that reductions in their pensions amount to discrimination on grounds of age and — in some cases — race and sex.

Truss could reasonably say these problems are not her fault. But they are her responsibility. It is not the public’s confidence in judicial independence that Truss must now repair. It is the judiciary’s.