I didn’t expect to be writing that headline less than five months into Liz Truss’ reign as Lord Chancellor and Secretary of State for Justice. Truthfully, I hoped I would never be writing it at all. Amidst the wails of protest that greeted her appointment, I was one of those urging that we give the new Lord Chancellor time. No, she had no legal qualifications or experience. Yes, she was trailed by suggestions that she harboured the type of damned ambition that drove Chris Grayling to such ruinous vandalism across the justice system. And the less said about that cheese speech the better. But, I counselled, Michael Gove should give us all pause for thought. Because, putting aside whatever other noses he may have put out of joint, during his brief tenure at the Ministry of Justice, he was impressive. He demonstrated genuine interest in and respect for not only his political brief, but the particular constitutional significance of the role of Lord Chancellor, which uniquely requires the office-holder to swear an Oath and discharge a statutory duty to defend the independence of the judiciary and respect the rule of law. And, notwithstanding the vocal scepticism of Ms Truss’ predecessors and colleagues over whether she had the mettle to stand up to her fellow ministers in discharging these duties,  it was only right that she be given a chance to prove herself.

Today was that chance. Today was her first big test. And she has failed spectacularly.

Yesterday, the High Court handed down its judgment in R (Miller) v Secretary of State for Exiting the European Union. You may better know it as the “Brexit ruling”. It wasn’t anything like that, of course; the Court was at pains to distance itself from the political question of whether we should leave the EU, or what such Brexit should look like. But the Court was asked, and everyone concerned – including the government’s lawyers – agreed that it was proper that the Court should determine, whether notice to leave the EU pursuant to Article 50 could be given by the Prime Minister exercising the Royal Prerogative, or whether an Act of Parliament was required. The Court, in a scrupulously reasoned judgment, held that an Act was required. As was inevitable regardless of outcome, this decision will be appealed upwards to the Supreme Court, who may reverse it, but as it stands the decision represents an inconvenient, although by no means insurmountable, bump in the road to the government’s planned March 2017 Art. 50 notification.

The merits of the judgment are for other, better legal blogs. But what followed can be discerned by any sentient, non-foaming person as hysteria beyond imagination.

UKIP naturally got in on the act first, its various idiotic pretenders to its cheap, nasty throne jostling to shout loudest for the “sacking” of these “unelected, activist judges”. They were soon joined by the intellectually backwards rump of the Tory party. Last night on Question Time, Sajid Javid, a government minister, danced around the issue of whether the independent judiciary had “thwarted the will of the British people”.

And then we woke up. And the front pages of the tabloid press looked something like this:

cwaj9y0wgae4lzo-jpg-large

Words are not enough. Not mendacious, misinformed, contemptuous nor dangerous, of which it is all these things, and far more besides. These were the front pages of failed states. Where judges are routinely dispatched to the netherworld at the whim of megalomaniacal dictators, and “law” amounts to the fancy of the armed masses. Our judges were out of touch, elitist, posh, democracy-thwarting, Europhile, corrupt and biased Enemies of the People. MailOnline yesterday famously – before quickly deleting the evidence – denounced the fact that the Master of the Rolls, one of the three judges, was “a gay ex-Olympic fencer”. The Daily Express, declaring the judgment “a crisis as grave as anything since the dark days when Churchill vowed we would fight them on them on the beaches”, actively called for its readers to rise up and “Rise up and fight, fight, fight.” Naturally, within minutes there were calls on Twitter for judicial executions.

A starker, more blatant attack on judicial independence is hard to conceive. It is one thing to criticise court rulings. Or to draw attention to judicial decisions where they fall into error. But when the legislature and executive join forces with the media to launch rocket after rocket of personal, unwarranted abuse that is intended not to criticise or inform, but to demean, undermine, unnerve, terrify and intimidate independent judges who cannot answer back, we have a genuine constitutional crisis. The separation of powers is not just breached but scorched to the ground.

And it matters. It’s not just an empty turn of phrase trotted out by lawyers like a lot of the obsolete latin we cling to. It’s of fundamental importance to the way we run our democracy. The separation of those who make our laws, apply those laws and govern the country is integral to ensuring that each branch of our constitution – legislature, judiciary and executive – can do its job. Key to this is judicial independence. We want our judges to be able to comply with their judicial oaths and apply and interpret legislation and case law faithfully and fairly, without fear or favour. They have to be free to rule when government purports to act unlawfully, without the lurking threat of personal or political consequences. Judges who have that independence compromised are, using the term in its proper sense, dangers to the people. Because they no longer apply the law on the basis of independent assessment of the merits of a particular interpretation, but to curry favour or avoid censure. There’s a reason our judiciary travel the world training judges in other states. Our model is the model to which others aspire.

And so what of our Lord Chancellor? How long did it take her to step out of the shadows and call for calm? To remind us all – populace, media, Parliament and executive – that due process to challenge the judges’ decision is taking place, and that the vicious, misinformed and unwarranted rage on display represents a dangerous and unjustified threat to the foundations of our democracy?

How many hours passed, after the Prime Minister pusillanimously refused to acknowledge that there was a problem, for Ms Truss to stand up to the PM and her cheerleader press editors and release a statement defending the right of judges to carry out their vital constitutional function without being gratuitously abused and threatened?

Nothing by lunchtime. The calls came louder. Shadow Lord Chancellor Richard Burgon released a statement condemning the behaviour and urging the Lord Chancellor to join him. The Lib Dems did likewise.

And as the clamour grew, as the legal profession watched on expectantly, waiting for the self-styled guardian of the judiciary to step into public view and remind her Parliamentary colleagues, fellow ministers and the media of the centrality of judicial independence to our constitution, and of the inherent danger in misrepresenting and hounding judges in such vile terms, there was the deafening sound of silence.

The Lord Chancellor said nothing. Not a single word.

So what we have is the Rule of Law being roundly trounced and judges being threatened for having had the audacity to apply UK law to a UK legal question and conclude that the UK Parliament was supreme.

And our cowardly, charlatan Lord Chancellor, cowering in the good graces of her Prime Minister and a rampant, ugly tabloid media, sitting meekly by and watching the world burn.

There’s still time, it’s true, for Ms Truss to spin out a belated, mealy-mouthed press release, with her fingers crossed that it doesn’t unduly offend those whom her Prime Minister is so desperate to please. But by now,  close of play on Friday evening, it’s too late. Like the Queen being shoved before the cameras several days after Diana’s death, the pause betrays the reality. Faced with the choice between upholding her Oath and pleasing her masters, she has unforgivably opted for the latter.

img_0512
A sick joke

She won’t resign, of course. It’s obvious now what her plan is. It’s the same as Chris Grayling’s. Stick around for 18 months, do the bidding of others who care not for quaint notions of justice and the Rule of Law, and slide quietly up the ladder to the next portfolio. Her Oath to protect the founding principles of our civilisation means less to her than the emergence of Chinese pork markets.

As someone even angrier than I once said about the serious subject of how much cheese we import:

That. Is. A. Disgrace.

 

**********************************************************

UPDATE: At 14:14 today, two days after the abuse of their judges started, the Ministry of Justice tweeted the following comment from Liz Truss:

//platform.twitter.com/widgets.js

A cowardly, mealy-mouthed and vapid comment which is notable only for its banality, this represents a contemptuous failure to even attempt to discharge her statutory duty to defend the judiciary. She may as well have stayed silent.

thesecretbarrister Judiciary, Politics

67 Replies

  2. She’s not the only justice minister of course. But I’m not aware of any of her team stepping up, in case she was unavoidably not at work today (she gave a bit speech about prison reform yesterday). It is deeply disappointing. The judiciary cannot enter the arena and defend themselves against these calumnies, and there is no one in the Judiciary press office senior enough to do so. Nor will IPSO, the supposed press regulator, do anything to help, as it has previously demonstrated, unless the judges themselves complain (which they won’t). The one person who should have done so is the Lord Chancellor. Big fail.

  3. You write with immense passion and skill. I differ only in hoping, against the evidence, that the Lord Chancellor will yet defend the Judges, as she undertook when taking office. Better late, etc.

    Nigel Pascoe QC

  5. I was appalled when I saw the headlines. If they wish the judiciary to know that they will receive such harassment and intimidation if they cross the views of the Mail or other media, then that is surely an attempt to pervert the course of justice. I complained to IPSO and the Met (unsurprisingly not very interested),but as was said in the post – there are those within the system who should be responding.

  7. I have nothing to do with the legal profession and only came across this page in a post. But what have we come to when the Lunatics scream to take their country back and hand power to the British Courts and Parliament and then as soon as this happens want to start to lynch judges. I know you all take an oath but sooner rather than later one of these morons is going to actually do something and then one of you will have to defend them. Not sure I could do that..

    1. Nevertheless, someone will do that, because there are sufficient qualified and committed people who believe in the necessity of and right to fair legal process; a thing for we all have cause to be thankful.

  8. A wonderfully impassioned article that articulates precisely my feelings on this disastrous affair. Thank you.

  9. Well said. The papers show utter ignorance and simply stir up the masses with their misinformation. Acknowledging their tendency towards sensationalism do they not have lawyers who could check the basic rules of law? The personal attack upon the Judiciary, the Master of the Rolls in particular, brings shame to the profession of Journalism. I leave until last the Lord Chancellor. Words fail me. It can never be right that we have a Lord Chancellor who is a non-lawyer. As a consequence she does not have the necessary knowledge or expertise to speak out. This country has many able lawyers and those who have held this high office in the pass have done so with distinction. Sadly the same cannot be said for Truss or her two predecessors however hard they may have tried to stand up to the plate. It is time for a reality check.

  10. Agree wholeheartedly. I was wondering if the newspapers particularly the Daily Mail and the Express could be held in contempt of court? Any idea?

  11. Pingback: Liz Truss is unfit for office and should resign — The Secret Barrister | Site Title

  12. I’m love the idea of the Daily Express readers rising to Fight, Fight, Fight.

    I suspect it would look like a 1970s zombie film, back when the braindead were slow and shambling, only threatening in their numbers.

    I await their reaction to Newsnight’s God Save The Queen. It feels like we are now into an open war for the soul of the nation, with the press barons openly playing their hand.

    Not unreasonably- they have interpreted the Brexit result as indicating they can manipulate public opinion as they see fit.

  13. It seems alas that we are living through a period when constitutional principle is lost in the face of mob rule and an overweening fascist press.Our politicians have revealed themselves as at best pusillanimous and at worst cynical and opportunistic.Dark times indeed.

  14. Pingback: Liz Truss is unfit for office and should resign | The Secret Barrister | kickingthecat

  16. The makers of these inflammatory headlines are well aware of what they say. The headlines are seditious and the makers of the headlines should be criminally prosecuted.

  17. Well said. Sadly this authoritarian – almost totalitarian – approach to governing appears to be inextricably tied up to brexit. There cannot be a liberal, progressive democratic brexit because it would require the whole nonsense to be explained in a coherent plan which it cannot be.

    If we brexit, this is how it will be.

  18. As a layman, I am convinced this is logical and right. Democracy ought not to be the rule of the baying mob. Surely we have examples enough in history – remember the French Revolution and the days of the guillotine. Democracy is the rule of the people – ALL the people. Because we have a representative democracy, Parliament is sovereign. On the present occasion, the Court said only that Parliament was sovereign and the Executive could not do whatever it liked. The Court was protecting Democracy, not defying it.

  19. A clear and succinct piece. Thank you.
    The contrast between the oath and the subsequent behaviour is chilling.
    It feels like the country is at the start of something louder and less informed.

  20. As many other legal people seem to do what you appear to be advocating is the rule of lawyers rather than the rule of law. When the country is asked to take a decision it is for Parliament and the judiciary to determine how it can be implemented, rather than how to defy democracy.

    2. Parliament are the winners here. Now they get to execute their legislative function in taking the UK out of the EU in place of the secretive and politically expedient approach of the government of the day.

  22. An excellent analysis. Unfortunately our real rulers are now the right wing press, because the government is scared to do anything which will antagonise them. Liz Truss was the wrong choice and is running scared of Murdoch and co.

  23. Thank you that great piece Mr Barrister. I was near weeping with despair yesterday when I saw the headlines and I am just grateful that you have put into words what we were thinking.

      1. Isn’t that the best kind? Perhaps she’ll make the application for mandamus – or whatever the younger folk call it?

  24. Her failure to back an independent judiciary is disgraceful and, as you say, renders her unfit for office.

  25. A great post, but an unfair comparison with the Queen. I seriously doubt that the horror of Diana’s death was received by HRH with the same indifference as this attack on the judiciary evidently was by our he lightweight Truss.

    Other than that your article is impeccable.

  27. Wonderful piece. Dwight Eisenhower once said “When a people put privileges ahead of principles, then both are soon lost”

  28. Attacks like this on the EHCR and ECHR judges have been going on for years. In those cases, the Mail et al. didn’t even bother to dredge up details about their private lives (openly-gay ex-fencer etc.), it was enough to point out that they were “foreign”. Where was the outcry from the legal profession then?

  29. What we are seeing here is the logical end-point of Cameron refusing to implement the Leveson recommendations – when newspapers effectively get a free pass to hack the phones of dead children, calling for the overthrow or killing of public figures is the result of Editors’ believing they can get away with anything. At the moment, under this government, they are correct in that assumption.

    I appreciate your impassioned argument and, as a layman myself, would not disagree with any of your points. For me yes, Truss is as hopeless as Grayling, as you say, but she has been appointed to the post by a P.M. who does not brook dissent, and is too pusillanimous herself to go up against May. I would argue the buck stops at the very top – our Prime Minister tacitly endorses these kind of headlines with her silence and chumminess with the likes of Murdoch, just as our last P.M. did, and it is she who is culpable and should resign.

  30. i agree the comment that has clearly been dragged out of her is wholly inadequate. she is Grayling Mk 2

  31. I am just wondering if it is possible to comit “contempt of court” from outside a courtroom. It seems to me that newspapers publicly saying that a set of judges are a “enemies of the people” following their considered judgement shows nothing but contempt for the judges peforming their job. If this public statement is not contempt for the legal process, I really dont know what is!

    2. It is certainly possible to commit contempt of court outside a court room. Violating a court order is one way to do it. What we’re seeing is more like contempt for court, and I don’t think that is actionable. I’d like to think the Supreme Court will say something about this when they (hopefully) unanimously uphold the rule of law.

      1. It would certainly be funny if Paul Dacre found himself prosecuted for contempt by the supreme court. Who would he appeal to? The european court?

        I certainly think that two of the tabloid newspapers crossed the line and need the justice system to put them back in line. If they were to have said what they said within a sitting court room their would be an unlimited fine and/or prison sentence to put them in their place. They are behaving like dictators with a prime minister behaving like a puppet kowtowing to their every demand out of fear. This is unsafe for the stability of our country and needs to be properly addressed. If the courts do not defent themselves, and the executive (government) do nothing, then we will end up either having anarchy or a civil war breaking our.

        So the new question is, who do we make a complaint to, to set the ball rolling to have a court judgement that the newspapers exhibited contempt against the judiciary?

        The next question is how do we force the lord chancellor and the PM to do their duty and defend the judiciary?

      3. The order/writ of mandamus (modern term a “mandatory order”) – A very interesting term. I am not entirely sure this can specifically be enacted against a newspaper, but it certainly seems plausible that the supreme court could utilise one ordering the lord chancellor or even the PM to hold them to account (their DUTY as a public servant irrespective of their personal views )

  32. Looking at the current “climate” in the UK (demonizing the “enemies of Nation”, notably communists,Europeans and the EU, but also capitalists and intellectuals).
    Read this press then try and do this exercise: substitute “Judges” or “Loaded foreign Elite” by “Jews” and voila…a sad page of History revisited.
    Dangerous times we’re living…

    1. For “a German newspaper”, read “the official Nazi Party newspaper”. Also, the paper was then reporting on a (much longer) list of people who had already had their German citizenship revoked. But I take the point.

  35. And the moral overall is …… appoint people to jobs that they are qualified for

  36. Isn’t it high time that the judiciary formed a trade union, to defend itself? It’s regrettable that the Lord Chancellor doesn’t do her job and defend the independence of the judiciary. In the absence of a robust support for judges from the Lord Chancellor I think there is a need for a voice to defend the judiciary when it is under attack. Given that there is supposed to be a separation of powers between the executive and the judiciary anyway, why do judges leave it up to the executive to defend themselves from unfair attacks?

  37. Thank you for writing this. I couldn’t agree more.

    The Lord Chancellor’s statement says nothing at all. From her failure to condemn the personal attacks on the judges, one must assume that she considers them appropriate. She is therefore unfit to hold her office.

    The Bar Council should now pass a motion of no confidence in her.

  38. It does seem incredibly strange that the the PM did not offer any rebuke to the tabloids when given the opportunity to do so today. Yes this could simply just mean she scared or in the pockets of the tabloids, but, an alternative thought came to mind. No matter how impartial a judge is, there must be a tiny part of them which is motivated by emotion or affiliations which could potentially influence how they weigh up their reasoned arguement. Could it be that in allowing the high court judges to be attacked, this would make the government’s chances of winning the arguement in the supreme court even harder to achieve? Could it be that the government secretly does not wish to win?

    It also strikes me that there is an alternative way to bring a poisonous press to heel. Convince a major retailer not to stock a specific newspaper, on the grounds that it goes against its “retail ethics” (a bit like south african goods being excluded because of [racist] appartite, except this time excluding a newspaper trolling individuals using race/sexual orientation etc).

  39. It would appear that the entire world is becoming infected with an “Anti liberal” agenda, very much to the delight of Putin and the other would be dictators (Trump, Farage, et al), who chip away at the rule of law with their populist claptrap.
    The trouble is that if the government is afraid to confront these views because they are afraid of the electorate then we are in a dangerous place; whereby Theresa May might call an election and pander to these swivel eyed loons to gain a mandate – not so that she can push through on Brexit per se, but so that she can continue in power. As Cameron demonstrated when he promised a referendum without a clear strategy, but with the overweening desire to be elected regardless of the risk.
    The “tyranny of democracy” has never seemed such an apt phrase

  41. Who is this “R (Miller)” as mentioned in the court paperwork, i.e. “R (Miller) v.s.”?

    1. Who is this “R (Miller)” as mentioned in the court paperwork, i.e. “R (Miller) v.s.”?

      Gina Miller is the lead claimant; the case is formally between “The Queen on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos (Claimants) – and – The Secretary of State for Exiting the European Union” (Defendant)

      More about Gina Miller here: http://www.bbc.com/news/uk-politics-37861888

  42. I can follow the logic of the judgement and agree with entirely, despite being pro Brexit. Not that I agree judges are beyond being disagreed with or critisim some of it personal in a free country where tax taken by threat of prison is how they are funded. Sorry but you are humans carrying out a public role in a free country, not priests of some special sect. Vociferous public discourse is how taxpayer funded institutions up their game.

  44. This is a great blog spot. It spells out what clear thinking is. I have views but I am always changing them according to the evidence. This place is where I come for high IQ info; and it is a gift to all. Thanks.

  45. Pingback: A litany of stupid in politics – Truss, May, IDS and Grayling all in one week | Oxford Inciter
  46. Pingback: Smelly Little Orthodoxies – Rubbish Wolf
  47. Pingback: Goodbye Liz Truss, Hello David Lidington – a brief look at the new Lord Chancellor | The Secret Barrister

Comments are closed.

Why did the government block the SNP’s Alan Turing Bill?
The “Walter Mitty” law is misconceived and dangerous in equal measure