Judges: They may not need love but they do deserve protection

When Elizabeth Truss took her oath of office to become Lord Chancellor she swore that ” I,  Elizabeth Truss, do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.  So help me God.”

The Constitutional Reform Act 2005 substantially changed the office of Lord Chancellor. The Lord Chancellor is no longer the head of the judiciary or speaker of the House of Lords, and since 2007 the office has been combined with that of Secretary of State for Justice.

Whilst the duties of the Lord Chancellor may have changed significantly over time two features of the office, reflected in the oath, have remained constant: to uphold the rule of law and to defend the independence of the judiciary.

As most people will know, defence is required and appropriate when one is under attack. Well, three  High Court Judges came under severe attack just last week after they had delivered judgment in the challenge to the Government’s contention that the prerogative powers of the Crown entitled them to trigger Art 50 of the Treaty of Europe and thereby begin the formal process by which the UK would leave the European Union. The judgment of the court is incidental to this note and incidentally, the Judges found against the Government and asserted that the sovereignty of Parliament (its right to have a say in the making and repeal of laws) was paramount and that accordingly any decision to trigger Art 50 could only be taken after Parliament had had an opportunity to vote on this issue.

Attacking the Judges for their judgment is one thing. No one could possibly rightly claim that a decision of any court should not be the subject of debate as to whether it was right or wrong or represented a logical and sensible outcome to the issue at hand. But the judge’s didn’t come under attack just because of their judgment they came under attack because of their perceived sexuality, for being enemies of the people and of thwarting the will of the people expressed via the referendum on EU membership. They have been outed in the way some would have us (most likely the same newspapers running their campaigns against the judges) expose paedophiles so they can be hounded and harangued into isolation and destitution.

Some may argue that this is no more than the judges deserved. Some may say the attacks were essentially about the judgment rather than the individuals involved and expressed the sentiments of many that the will of the people must be respected.

When the judges delivered judgment they were intimately concerned with the rule of law. They analysed, in great detail, the scope of the prerogative powers of the Crown as well as the supremacy of Parliament and they came down on one side of the line rather than another. The Supreme Court will now hear the appeal and it may well come down on the other side of the line. What neither court has or will do though is to analyse the issue of whether the prerogative power is exercisable on the basis that because the referendum produced the Brexit result then that determines how the court should resolve this issue. That is not the way of the rule of law and it was not what the Government legal team, including the Attorney General, argued for.

The rule of law is a difficult beast to tie down. However, we have the brilliance of the now deceased senior Law Lord, Lord Bingham, to help us here . In his small but immensely important book, The Rule of Law (Allen Lane, London, 2010) Lord Bingham identified eight principles or characteristics of the rule of law and from which there has been little if any dissent. Principle 4. is as follows: The Exercise of Power: Ministers and public officers at all levels must exercise powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably (my emphasis). This was what the Judges had to decide when the challenge to the Art 50 procedure that the Government wished to deploy was brought before them and decide it they did and against the Government.

On Tuesday, far across the Atlantic, Donald Trump won the race for the White House. This blog is not a device for attacking or defending Mr Trump. However, it is worthwhile noting the differences between the separation of powers within the UK and as operates in the United States of America. The Supreme Court of the US is the highest federal court. Once appointed, its judges enjoy life tenure unless they resign , retire or are removed following impeachment. The U. S. Constitution states that the President, and only the President, “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges to the Supreme Court”. It is broadly accepted that Presidents will only nominate justices who broadly share their political and ideological views in the hope that the decisions they will eventually be asked to give, will be in line with the executive’s wishes.

In the UK the procedure for appointing judges to the Supreme Court is governed by sections 25-31 and Schedule 8, of the Constitutional Reform Act. Although the procedure is different for High Court Judicial appointments one of the common themes is that there is the most limited involvement of the executive in the appointment of a Supreme Court Judge ( the Lord Chancellor is responsible for convening a selection commission but takes no part in it once convened)  and absolutely no executive involvement in the process so far as High Court Judges are concerned.

So overt politics is taken out of the equation in the UK but is very much a flavour of the appointment system in the USA. Indeed, many legal and political commentators have opined that the power of the President to nominate Justices is the single most important constitutional power that he possesses and the effects of which, because of the life tenure of the appointment, invariably long outlive the President’s term of office.

So, when the newspapers criticised the judicial independence and bias of the judges involved in the hearing, they were attacking the judiciary to the foundation of their role as impartial and objective defenders of the rule of law. The judges, by convention, never defend themselves. They leave this task to the Lord Chancellor who occupies that hybrid role of being a member of the executive and defender of the judiciary. Did the Lord Chancellor perform her role adequately? Well, she did assert that the judges were independent and impartial and that in her view they were well able to absorb the flak they were getting for their judgment. However, she also defended, by way of apparent equivalence, that the freedom of the press, in the context of these attacks, was also something that she believed in.

She clearly could have said more. She could, for instance, have said that although she fundamentally disagreed with the decision there was absolutely no suggestion that what the court was attempting to do was to frustrate the will of the people. Rather, it was seeking to uphold a fundamental aspect of the rule of law without which all of us would be subject to the whim of the executive and the side-stepping of the legislature, our elected representatives. Was her response in keeping with her oath? I leave that to the reader to judge but given the ferocity and nature of the attack the judges received, you might think they expected and deserved just a little more protection and defence.

Practical Law Paul Brooks

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