The attitude of the Conservative government – both under Cameron and worsening under May – towards scrutiny, opposition and the rule of law is remarkably worrying.
Last year, after the House of Lords voted to give families a three-year protection from cuts to tax credits, the government positioned the Lords against the people, with George Osborne stating:
“Unelected Labour and Liberal Lords have defeated a financial matter passed by the elected House of Commons, and David Cameron and I are clear that this raises constitutional issues that need to be dealt with.”
Following the recent High Court ‘Article 50’ ruling in R (Miller) v Secretary of State for Exiting the European Union the government positioned the judges against the people. A government spokesperson stated:
“The government is disappointed by the Court’s judgement.”
“The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum.”
“We will appeal this judgement.”
Further, the government’s reaction to its legal obligation to consult and negotiate with Parliament over its plan for exiting the European Union – as confirmed in the recent High Court ruling – is to pit Parliament against the people.
In a newspaper article on Saturday, Theresa May wrote:
“It is the responsibility of the government to get on with the job and to carry out [the people’s] instruction in full. MPs and peers who regret the referendum result need to accept what the people decided.”
In short, the unelected prime minister is placing herself on a pedestal of being the only rightful voice of the people. The government is conflating itself with the people, and as such is accusing any opposition to itself as being opposition to the ‘will of the people’.
Today, Britain stands on the brink of public disorder following a whipping up of mob mentality by certain elements of the media in response to an alleged betrayal of the so-called ‘will of the people’ by the judiciary in Thursday’s High Court ruling.
Former attorney-general Dominic Grieve said that some of the headlines had made him feel as though he was in “Robert Mugabe’s Zimbabwe.”
Nigel Farage, UKIP leader yesterday warned on the BBC’s Andrew Marr show:
“If the people of this country think that they’re going to be cheated, they’re going to be betrayed, then we will see political anger, the likes of which none of us in our lifetimes have ever witnessed.”
Responsibility for quelling such public outrage, and particularly in the face of what is a clear media misrepresentation of the High Court’s ‘Article 50’ ruling by certain newspapers, traditionally falls to the Lord Chancellor – an office currently held by Liz Truss, MP – who is under a statutory duty to maintain public confidence in the rule of law, and, where relevant, to speak out on the behalf of the judiciary.
However, by Friday of last week – and despite a growing loss of public confidence in our judiciary in response to a tabloid media frenzy, Ms. Truss remained silent on the matter.
Liz Truss’s shadow counterpart, Richard Burgon MP, stated:
“As Lord Chancellor, Liz Truss should not stay silent. It is the Lord Chancellor’s job to uphold the independence of British judges and she must speak out urgently against the hysterical headlines of some papers and the attacks on British justice.”
The Bar Council of England and Wales also spoke out to condemn “the serious and unjustified attacks on the judiciary.” It said:
“[The Bar Council] regrets the lack of public statement by the Lord Chancellor condemning these attacks and calls upon the Lord Chancellor to do so as a matter of urgency. A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law.”
Liz Truss belatedly responded to these public calls to ‘speak out urgently,’ stating:
“The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.”
“In relation to the case heard in the High Court, the government has made it clear it will appeal to the Supreme Court. Legal process must be followed.”
Liz Truss’s meagre response echoes that of her prime minister.
A spokesman for Theresa May – whose government announced on Thursday that it is confident it will overturn the High Court ruling in its impending supreme court appeal – stated on Friday:
“I don’t think the British judiciary is being undermined.”
Beyond this, the prime minister’s office refused to comment at that time.
Shadow Lord Chancellor, Richard Burgon MP, noted of Liz Truss’s response:
“Let us be clear – all Liz Truss has done is recite the well-known principle of the independence of the judiciary.”
“Liz Truss has still failed to condemn these attacks on the British judiciary as being ‘Enemies of the People’ and talk in the press of the sexuality of a judge.”
“I am afraid that it is far too little, far too late from Liz Truss. The last few days mean that much of the legal community now has no confidence in the Lord Chancellor to fulfil her statutory duty to protect the independence of the British judiciary.”
Prior to 2005, the pivotal role of Lord Chancellor – the ‘meeting point’ role between the three branches of state: executive, legislature and judiciary – fell to a professional judge of proven knowledge and experience, who served as the judiciary’s representative in the cabinet alongside the role of the head of the judiciary, in addition to being charged with the role of speaker of the the House of Lords, crucially bridging the gap between the three branches of state: executive, judiciary and legislature.
However, in 2005 Tony Blair’s government merged the role of the Lord Chancellor with that of the justice secretary by the passage of the Constitutional Reform Act (“CRA”) 2005. Further, the Lord Chancellor’s status as head of the English and Welsh judiciary was transferred to the Lord Chief Justice, whilst the Lord Chancellor’s facility to recommend judicial appointments transferred to an independent commission.
These measures were intended to ensure the separation of powers of the judiciary from the executive and the legislature. It was the reasoning of the government of the day that the allowing of one person to have roles in all three branches of state was contrary to the doctrine of the separation of powers as practised in the UK constitution.
In reality, the British constitution has never practised the separation of powers as a fundamental principle – as evidenced by the entire executive branch of government being de facto members of the legislature. The focus of the Blair government ought to have instead been directed towards ensuring the independence of the judiciary.
The Law Lord, Lord Hobhouse of Woodborough, in his supplementary response to the government’s 2003 consultation on the creation of the supreme court, stated:
“The fundamental constitutional principle of the Rule of Law in the United Kingdom is, and has been, explicitly, since the Bill of Rights 1688, Judicial independence […]”
“It is important not to confuse the United Kingdom’s constitutional principle of the independence of the Judiciary with the United States of America’s principle of the separation of powers. […] Thus in the United States, the President and other members of the Executive are debarred from being members of the Legislature whereas in the United Kingdom the position is the reverse.”
“It is a serious flaw [that the government’s proposals] […] appears to choose the doctrine of the separation of powers not the independence of the Judiciary.”
Blair’s government additionally politicised the role of Lord Chancellor by virtue of the removal of this grave responsibility from experienced judicial shoulders, and instead, facilitating the appointment of politicians, with or without any legal training, knowledge or experience.
And so, what of the office of Lord Chancellor post-CRA 2005? Are the holders of this great office of state figures of considerable weight, rock-solid defenders of law?
Upon entering office, all Lord Chancellor’s swear the following oath:
“I, do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law [and] defend the independence of the judiciary […] So help me God.”
The first two Lord Chancellors of the new breed – Jack Straw MP and Kenneth Clarke QC MP – were men of law; former lawyers, well versed with the system they swore an oath to safeguard. However, the three after them – Chris Grayling, Michael Gove, and Liz Truss – were not lawyers and had no formal legal qualifications. In short, they were politicians first and Lord Chancellors second.
Chris Grayling, Lord Chancellor (2012-2015) was widely accused of putting his political aims as justice secretary before his constitutional obligations as Lord Chancellor.
His political cuts to legal aid caused a judge at Southwark Crown Court to terminate the prosecution of five men accused of stealing £5m from UK investors. Why? Grayling’s Ministry of Justice cut legal aid fees for complex cases by 30%, and terminated the contracts of any barristers who refused to accept these political cuts to ‘the NHS of justice,’ leaving the defendants without legal representation.
Further, Grayling implemented controversial plans to restrict the power of the courts to hold the government to account through limiting when legally aided claimant solicitors will be paid in judicial review cases with the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations 2014. He cloaked this curbing of judicial review in the language of politics. Writing in the Telegraph, he bemoaned “left wing lawyers,” and “political pressure groups” for “making a healthy living” out of “rushing to court.” Partisan language unbecoming for the constitutional defender of the law.
In July 2016, Liz Truss MP was appointed as Lord Chancellor.
In response, Lord Faulks QC, a junior minister in the Ministry of Justice, resigned due to his lack of confidence in the new appointee’s ability to fulfil her oath. He stated:
“Is she going to have the clout to be able to stand up to the prime minister when necessary, on behalf of the judge? Is she going to be able to stand up, come the moment, to the prime minister, for the rule of law and for the judiciary […] without fear of damaging her career? It’s a big ask.”
This question has now been resoundingly answered.
The moment came, and went – and Lord Chancellor, Liz Truss did not stand up.
The Secret Barrister, phrased their dissatisfaction with the Lord Chancellor in harsher terms:
“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.”
At a time when the Daily Mail is slamming judges as “Enemies of the People,” the Daily Express is calling for people to “Rise up” and “fight, fight, fight,” and the Telegraph is pitting “The judges versus the people,” – alongside politicians gleefully willing to stoke the flames of anger with no regard for how our constitution functions – now more than ever before, we need someone who can stand up for the judiciary, and our centuries old tradition of the rule of law.
Someone must speak for the judges
And that someone is most certainly not the current Lord Chancellor, Liz Truss.
However, Liz Truss’ inaction speaks less to the politics or the abilities of Liz Truss as an individual than to the overriding attitude, outlook, and intentions of the government of Theresa May.
This notably includes the government’s determination to win their arguments and to control the other branches of state by use of the popular press, and which press’ recent abuse of the judiciary has been condemned by a number of politicians as being “chilling and outrageous” and “inciting hatred” and thus, despite politically charged insistence otherwise, not entitled to the protection afforded under the freedom of the press.
What then of our prime minister, Theresa May, the person charged with selecting a Lord Chancellor who “appears to the prime minister to be qualified by experience”?
In light of her Lord Chancellor’s failure to fulfil her statutory duty to speak out for the rule of law and judicial independence, did Theresa May speak out in her stead?
On Saturday, Theresa May stated:
“I believe in and value the independence of our judiciary. I also value the freedom of our press. I think these both underpin our democracy and they are important.”
This token comment aside, Ms. May went on to discuss the government’s impending Article 50 appeal of the High Court ruling on Thursday:
“Of course the judges will look at the legal arguments. We think we have strong legal arguments and we will be taking those arguments to the Supreme Court.”
Ms. May vowed to continue her government’s as yet undisclosed Brexit plans.
In a plea issued by Theresa May in Saturday’s Telegraph under the emotive banner:
‘Why I will not allow the British people’s vote for Brexit to be sabotaged’,
“Parliament voted to put the decision about our membership of the EU in the hands of the British people. The people made their choice, and did so decisively. It is the responsibility of the government to get on with the job and to carry out their instruction in full. MPs and peers who regret the referendum result need to accept what the people decided.”
However, this statement conflates the issues and is a misrepresentation of the High Court’s ruling, which was not a judgement upon the UK’s decision to leave Europe.
Theresa May, in giving equal weight to the independence of the judiciary (a vital branch of state) and the freedom of the press (a civil liberty) gives a prime ministerial validation to the arguments of the more irresponsible of the press that the judges were being ‘activist’ rebels in the face of the ‘will of the people.’ She further qualifies her alleged support for the judges independence with an implied sleight upon their judgement and – arguably – their democratic awareness.
In fact, by pursuing the appeal against the High Court’s Article 50 ruling, Theresa May’s government is behaving as a de facto activist executive.
Far from representing the ‘voice of the people’ in the face of so-called saboteurs, this government is seeking the Supreme Court’s assistance to affirm a change in the law without recourse to Parliament such that the executive itself may hereafter change any aspects of UK law that connect to or flow from international laws and treaties, and regardless of effect upon domestic law.
A most undemocratic, authoritarian sleight of political hand indeed.
It is alarming when any executive chooses to scapegoat the other equally vital branches of state when it is politically expedient to do so in the short-term, and with reckless disregard for the long-term negative effects to the British constitution – instead of disseminating information about the way the constitution functions and the vital roles each branch of state plays and the rule of law. It is reminiscent of the Nazi approach to the rule of law in the 1930s where judges were labelled as ‘enemies of the people.’
The failure of the politicised Lord Chancellors to act with the gravitas and strength of will which their constitutionally vital position demands calls into question their effectiveness of this now political appointment as a check and balance on executive excesses, and as the guardian of the rule of law.
If there is one thing the events of the past few days has shown, it is that even in our cherished legal system – aspired to and copied by nations around the world – the rule of law, a cornerstone of both our constitution and our way of life, is not guaranteed.