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.
Yesterday was that chance. Yesterday was her first big test. And she has failed spectacularly.
On Thursday, 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:
DAILY MAIL: Enemies of the people #tomorrowspaperstoday #bbcpapers pic.twitter.com/n5ynFalnEa
— Neil Henderson (@hendopolis) November 3, 2016
EXPRESS: We must get out of the EU #tomorrowspaperstoday #bbcpapers pic.twitter.com/Lzl2Xx6oEf
— Neil Henderson (@hendopolis) November 3, 2016
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 Mmnister pusillanimously refused to acknowledge that there was a problem, for Ms Truss to stand up to the PM 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 on Friday. 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.
The statement, when it finally came on Saturday afternoon, was belated and mealy-mouthed, speaking of the importance of a “strong and independent” judiciary but failing to condemn the backlash against the three judges who made the Article 50 ruling. But by now, 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.
She won’t resign, of course. What’s more likely is that she will 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 appears to 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.
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