Enemies of the people?

Judges must not be swayed by criticism, their leader says

Moral courage is a cornerstone of our legal system, the lady chief justice of England and Wales said in a speech released yesterday. Addressing the Law Society of Jersey at the weekend, Baroness Carr of Walton-on-the-Hill observed that judges were required to make decisions based on justice and integrity, often in the face of significant pressure.

She said:

As legal professionals, we must set aside personal views and prejudices to ensure justice is served. This is particularly relevant in our judiciary, where impartiality and integrity are paramount. Judges and advocates must support each other, maintaining vigilance and courage, especially when challenging situations arise.

After giving a historical overview, the chief justice acknowledged that judges were no longer at personal risk from the Sovereign. “However,” she continued, “we live in a world where pressure can still be brought to bear in many subtle — and sometimes not so subtle — ways.”

As an example, she mentioned the famous Daily Mail headline in November 2016 that defamed three senior judges after they had ruled that Brexit could not be triggered without legislation:

Carr said:

The judges in the divisional court were referred to as enemies of the people in the national press and there was discussion of marches on the Supreme Court. Before that, during the period when super-injunctions were causing headlines, suggestions were made in parliament that judges should be threatened with imprisonment for making such orders.

It would be odd to suggest that these were not attempts to put pressure on the judiciary. More overt pressure is evident in other jurisdictions. A particularly telling one was the campaign called “Jail 4 Judges”. This was a campaign in the United States, the aim of which was to intimidate judges so that they decided cases in line with the campaigners’ views.

It is true to say that judges have to have broad shoulders: they must take a robust approach to such matters and not allow themselves to be swayed by campaigns, the media or their own personal views. But judges do not simply obtain the necessary moral courage upon appointment. There is no secret sauce in the judicial oath in that respect.

Rather, moral courage is something that judges and magistrates develop in their careers before appointment… Wordsworth once said that the child is father to the man. It can properly be said that the advocate, the lawyer, is father, is mother, to the judge.

Falconer

By coincidence, the Daily Mail headline came up yesterday in a speech by Lord Falconer of Thoroton, the former Labour lord chancellor, at a conference fringe meeting in Liverpool called “Labour v the judges” and arranged by the Society of Labour Lawyers.

Falconer maintained that the headline represented the view of the then Conservative government, basing this on a comment made by the communities minister Sajid Javid MP on the BBC’s Question Time programme shortly after the judgment had been delivered.

The Conservatives had “put the judges in play in a way”, politically, that had not been seen for 50 years, Falconer argued:

That inevitably would have had an effect on the way that the judges looked at decisions that might be said to have had a political connotation, how they would address those issues. They would pick their battles.

So, in one sense, the Tories got their way. They made the judges much more windy about interfering in things that might be said to be political. It’s not just the “enemies of the people” that caused the judges’ problems.

The case that Carr and Falconer were discussing is known to lawyers as Miller 1. But the former lord chancellor also spoke of Miller 2, decided in 2019:

Look at the response to the prorogation case, when the prime minister and the attorney general… said that the judges had become too political, that the prorogation decision was a political decision, and the answer was that the politicians should have more of a role in the selection of judges…

Can you imagine a situation where the lord chancellor [at the time of the prorogation case] would have interviewed three candidates to be the lord chief justice and advised the prime minister and the King to select the one who… gave the most pro-executive interview?

That would have been the consequence, he argued, if parliament had not created the Judicial Appointments Commission by legislation passed in 2005.

“So I think the judges will be glad to see the back of a government that called them the enemies of the people and tried to draw a line between them and decisions that were political,” Falconer said.

Comment

It was not the previous government that called judges enemies of the people, even if some of its members might have shared the view of a newspaper editor that the High Court was interfering in the political process.

Falconer may be right in suggesting that judges who had to deal with some members of the last government — as well as those who had to consider whether its actions were lawful — may have privately welcomed the prospect of ministers who proclaim their commitment to the rule of law. But there will be no rush to judgement before the evidence is in.

Was Falconer being mischievous in his unscripted comments? You can listen here and judge for yourself.

As Falconer knows perfectly well, suggesting the judges are friends of the people’s party is just as damaging to them as suggesting they are enemies of the people. But if Carr is right, they will not be swayed — either by criticism or by flattery.