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Lord Chancellor has constitutional duty to defend judiciary, says Lord Neuberger

President of Supreme Court backs Lord Thomas’ criticism of Liz Truss

29 March 2017

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The Lord Chancellor, Liz Truss, had a constitutional duty to defend High Court judges from press attacks following their decision on the article 50 litigation, Lord Neuberger told peers today.

On the day the UK signalled its intention to leave the EU, as required by article 50 of the Lisbon Treaty, the president of the Supreme Court addressed the impact that ‘abusive’ media coverage of the judges involved in the first Miller case had had on the wider judiciary.

Giving evidence last week to the House of Lords Constitution Committee, the Lord Chief Justice, Lord Thomas of Cwmgiedd, criticised Truss for failing to defend him and two other judges who were labelled ‘enemies of the people’ by the right-wing press following their judgment last November.

In the weeks before the Supreme Court case, Baroness Hale had dismissed accusations from politicians of judicial bias after impartially discussing Miller in a speech to law students in Malaysia. Speaking exclusively to Solicitors Journal amid tabloid attacks calling for her removal from the appeal, Hale said she would ‘absolutely not’ recuse herself.

Similarly, Lord Neuberger also faced accusations of bias after it was revealed that his wife posted a series of anti-Brexit tweets. He too was urged to stand down but refused.

Today Lord Neuberger and Lady Hale gave evidence to the Lords’ committee, with the president expanding on the Lord Chancellor’s constitutional duty to defend the judiciary, particularly when judges cannot speak up for themselves.

‘Clearly the judges have a function of explaining their role and their function to the public, but the Lord Chancellor does as well,’ he said. ‘Section 1 of the Constitutional Reform Act 2005 makes it clear that although that Act has made substantial changes to the role of the Lord Chancellor and many judges, it was not intended to alter the Lord Chancellor’s functions in relation the to rule of law.

‘When the Lord Chief Justice and the president of the Supreme Court are hampered by the fact they are involved or are to be involved in a case and cannot speak up, the Lord Chancellor has a particular duty to speak up in those circumstances.’

Lord Neuberger said it was necessary to distinguish between the reception of the Divisional Court's ruling, which was ‘quite inappropriate’ in some newspapers, and that of the Supreme Court’s judgment.

‘So far as the reaction to the Divisional Court’s decision was concerned, there was a degree of dismay and I think the dismay was felt probably less than in the Supreme Court than lower down,’ he said. ‘The judiciary felt attacked personally because the two most senior judges of England and Wales were on the Divisional Court. So far as the staff were concerned there was some surprise and some dismay as well.’

Truss has repeatedly dismissed criticism of her response to press attacks on judges, stating that while she believes in the independence of the judiciary, she also supports freedom of the press.

‘It isn’t an issue of freedom of expression,’ Lord Neuberger told peers. ‘If the newspapers had a right under the freedom of expression to be critical and indeed many would say more than critical, abusive of the judiciary, then surely freedom of expression entitles the Lord Chancellor to correct what they say and criticise them for what they say. In my view section 1 of the Constitutional Reform Act means that she has a duty to do that and therefore I agree with what the Lord Chief Justice said.’

The two most senior Supreme Court justices were also asked whether televising Miller had improved the public’s understanding of the case and role of the court. The four-day trial was viewed by around half a million people.

‘I hope and believe the filming of Miller did help inform the public in the way the courts work and, therefore, the rule of law,’ said Lord Neuberger, adding that people’s ability to watch proceedings live was partly the reason why press reaction was ‘very much more restrained’ than after the Divisional Court’s ruling.

‘I’ve always been quite relaxed about filming in court,’ he said. ‘We always accept that people should be free to come in and watch court and the notion that filming is the equivalent of being in court is quite a powerful one.’ Neuberger added that while filming made justice more open there was an argument against filming in some serious cases.

Expanding upon the president’s concern, Lady Hale remarked: ‘I would reinforce very serious reservations about filming witnesses giving evidence so that means most trials it would be really difficult, although the judge’s summing up might be perfectly possible to film. The actual giving of evidence, I would be very worried about that.

‘For most witnesses it’s a one-off experience and the last thing we would want is for their quality of evidence to be distorted.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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