|Lord Chancellor Elizabeth Truss MP|
A couple of days ago the Times reported that former Lord Chief Justice, Lord Judge, said that our current Lord Chancellor, Liz Truss, may have broken the law by failing to defend judges following personal criticism of them by national newspapers, one of which described them as “Enemies of the People”. Obviously, I usually defer to his Lordship’s better knowledge in all matters legal but in this instance, I am not convinced he is correct.
What is the law? The Constitutional Reform Act 2005 sets out who can be Lord Chancellor and the functions they must perform in the role. We’ll skim over the debatable question of whether Liz Truss, a junior politician with no experience of the justice system beyond a 17 month stint on the Justice Committee and no legal training, is actually qualified to hold the post and move swiftly on to the role of the Lord Chancellor.
Section 3 of the CRA 2005 is concerned with guaranteeing the independence of the judiciary. The section tells us that:
(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.
(4) The following particular duties are imposed for the purpose of upholding that independence.
(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.
(6) The Lord Chancellor must have regard to—
(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;
(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.
We can see from the Act that it is not only the Lord Chancellor but also other Ministers who have a duty to uphold the independence of the judiciary – I have yet to see any criticism of anyone else, such as Sir Oliver Heald QC MP (an actual barrister, called in 1977 and an MP since 1992) who is Minister of State for Courts and Justice. The Lord Chancellor herself must take account of the three points mentioned in subsection 6, in this case you might agree with me that the first two are relevant to a situation where the press have misrepresented the impact, meaning and scope of a judicial decision, branded the judges “enemies of the people” and personally attacked the judges who made the decision – in one case the attack was because he is homosexual.
It is important to note that the Act does not require the Lord Chancellor to protect the judges themselves, merely the independence of the judiciary – that is an entirely different thing.
There is no provision in the Act creating a penalty for breach of section 3.
In addition to the 2005 Act, the Lord Chancellor should consider the Promissory Oaths Act 1868, which contains the oath to be taken by the Lord Chancellor as soon as may be after acceptance of the office. Section 6A(2) sets out the oath:
“I, [Liz 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 1868 Act contains no provision or penalty for breach of an oath, aside from if the Lord Chancellor refuses to take the oath, which is not the case here. It has been suggested to me that breach of the oath is perjury; however, the Perjury Act 1911 defines perjury and does not include any reference to breaching an oath under the 1863 Act. While it’s a little elderly now, I note that in his 1838 Commentaries on the Laws of England in Four Books, Sir William Blackstone says,
“And even where an oath is required by an act of parliament in an extrajudicial proceeding the breach of that obligation does not seem to amount to perjury unless the statute contain an express provision to that effect”
|Liz Truss's letter to the Times|
So, it would appear that while the Lord Chancellor is required to have regard to various factors and swears an oath to uphold the independence of the judiciary there is no actual penalty, aside from judicial review proceedings, should she fail to live up to her obligations.
I am not going to go through the motion of analysing in depth whether the attacks on the judges were an attack on their independence because, it strikes me as unarguable that they are. Branding three of the most senior judges in the country “enemies of the people” and engaging in false reporting about the decision can only be intended to stir up disquiet among the population and the upshot of that is that pressure will be put upon judges and magistrates who hear cases to decide them according to how the Daily Mail and Sun think best to avoid similar treatment but also on the Supreme Court justices who will hear the appeal.
What did Liz Truss say in response to the newspaper attacks? The answer is “not very much”. She released her official statement:
"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."
She subsequently wrote to the Times, repeating the importance of an independent judiciary, although most of the letter is concerned with the defence of Liz Truss.
The questions we must ask ourselves are:
1. Does this defend the independence of the judiciary?
2. Has the Lord Chancellor discharged her duty to defend the independence of the judiciary in accordance with her oath?
I think that the answer to question 1 must be “yes”. Whether you like it or not a Government minister stating clearly that “the independence of the judiciary is the foundation upon which our rule of law is built… legal process must be followed” is clearly defending their independence, which is precisely what section 3(1) of the 2005 Act requires.
The oath requires the Lord Chancellor to “respect the rule of law”, which she hints at in her statement and sets out clearly in her letter to the Times. It also requires her to “defend the independence of the judiciary”, which she has done. Interestingly, the oath does not explicitly require her to defend the rule of law, merely respect it.
|State of our courts|
There is nothing in either the 1868 nor 2005 Acts that requires a defence to be strongly mounted, ingenious, convincing or accomplished. The only requirement is that judicial independence is defended. To that extent she has done her job, although not quite as well as she could have.
If we are going to criticise the Lord Chancellor for breaking her oath then we should consider the final portion of the oath where she promised to, “discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”. The courts are today in a terrible state and getting worse because they, like the rest of the justice system, are seriously under resourced. That is a part of the oath that Liz Truss is currently breaching and so did Michael Gove and Chris Grayling before her. She has time to do something about it, the question is: will she?