Lord Thomas hits back at criticism of judicial decision making
22 May 2017
The Lord Chief Justice has hit back for the second time against the ‘unprecedented’ levels of attack to which judges have been subjected in the aftermath of the Brexit ruling and at the lack of government support.
Giving this year’s Lionel Cohen lecture at the Hebrew University in Jerusalem, Lord Thomas said the judiciary had been ‘drawn into what some have characterised as political decision making – the characterisation used by those who oppose the decision as a decision being made not on the law, but for political or other impermissible purpose’.
What was of ‘greater concern’ still, he said, was ‘the unprecedented nature of attacks made on the judiciary for such decisions by those who characterise the decisions as political’.
Lord Thomas was one of three judges, with Sir Terence Etherton and Lord Justice Sales, labelled ‘enemies of the people’ in a Daily Mail front page the day following the High Court ruling in the Miller case.
The ruling, upheld by the Supreme Court on 24 January, said Brexit could not be triggered by the government acting alone but required a vote in parliament beforehand.
With both main parties agreed on giving effect to the referendum result to leave the EU, the government was by then assured a Brexit Bill would get through with little or no delay.
Pro-Brexit papers nonetheless excoriated the judges, accusing them of an attempt to subvert the will of the people. An early Daily Mail online headline – removed within hours – even referred to Sir Terence Etherton as an ‘openly gay ex-Olympic fencer’.
Much to the dismay of the legal community, the government didn’t immediately come to the support of its judges. The Lord Chancellor, Liz Truss, only did so days later and in terms less than convincing.
This kept the field open for Leave campaigners to continue with their verbal assault on judges. Commenting on Lord Thomas’s suggestion a few weeks later that the government should consider more non-custodial sentences as a way of dealing with prison over-population, Tory backbencher Philip Davies MP said the Lord Chief Justice’s ‘left-wing view of the world’ showed he was ‘out of touch with the public he is supposed to serve’.
That same week, Times commentator Melanie Phillips took aim at Baroness Hale for throwing ‘a judicial hand grenade’ when using the article 50 case as an example of the separation of powers doctrine in a talk to law students in Malaysia. Mentioning the case, Phillips said, was a ‘lapse of judgement’ that made the only female justice unfit to succeed Lord Neuberger when he retires in November.
Lord Thomas started the fight back a week later when he gave his annual press conference. Asked by Daily Mail legal reporter Steve Doughty whether there should be criticism of judges’ in newspapers, Lord Thomas replied: “It depends where the dividing line is between criticism and abuse’.
The Lord Chief Justice used the same words at the end of March when he appeared before the House of Lords Constitution Committee. The Miller case, he added, was the first time in his whole career he had to ask for police assistance.
In the meantime, Liz Truss had caused further consternation when she gave evidence to the same committee on 1 March, saying judges should get used to having to explain their work so they could regain the public’s trust.
Although the Lord Chancellor said she was committed to a strong and independent judiciary, she said people valued a free press just as much. She declined once again to bring her support specifically to the judges who had been targeted in the course of the Brexit proceedings.
Two months ago, on Brexit day, Lord Neuberger also came out against Truss, telling House of Lords Constitution Committee that Lord Chancellor had a duty to defend judges from press attacks.
Lord Thomas’s latest comments were made as part of his lecture on the need for cohesion within the judiciary and for a system of governance, which he said were essential to perform its core responsibilities.
The Lord Chief Justice said he would address the specific issue of the relationship of the judiciary with the press in a separate lecture, the Michael Ryle Memorial Lecture in Westminster next month.
This story was first published on Solicitors Journal on 22 May 2017 and is reproduced by kind permission