A Tale of Two Constitutional Duties: Liz Truss, Lady Hale, and Miller

Nov 28, 2016

A great deal has been written about the High Court’s judgment in Miller, some of it on the Judicial Power Project website. The importance of Miller, and the intensity of the reactions that the judgment has provoked, can be seen in the separate controversies over Liz Truss and Lady Hale. In this post, I reflect on the two controversies in order to highlight a striking asymmetry in the legal community’s overreaction to the first controversy and its muted under-reaction to the second.

In the last few weeks, the Lord Chancellor, Liz Truss, was roundly criticized by several of her parliamentary colleagues, most of her political opponents, retired judges, lawyers and academics. For her critics, the Lord Chancellor’s sin was first taking too long (≈48 hours) to issue a public statement in the face of what many in the legal profession regard as over-the-top and wholly improper media criticism of the High Court in Miller and then issuing a mealy-mouthed public statement affirming the importance of judicial independence. Some even speculated that the Lord Chancellor failed to discharge her duty under s3 of the Constitutional Reform Act 2005 to “uphold the continued independence of the judiciary”. The former Lord Chief Justice Lord Judge suggested that Truss had acted unlawfully, whilst the former Lord Chancellor Lord Falconer was one of several voices calling on her to resign.

I do not share this analysis. Before explaining this, let me begin by stressing that some of the press coverage was undoubtedly excessive. (I note in passing that for a career politician like Liz Truss who might be desensitized to harsh and even unfair coverage, the headlines might have seemed unsurprising and run-of-the-mill). Allow me also to emphasize the vital importance of robust public scrutiny of the judiciary and the decisions they render, especially during a time of ascending judicial power. Media scrutiny will seldom mirror the niceties and subtleties of legal argument—and, for the most part, this is a very good thing. Although recognizing that the press sometimes gets things wrong, and might on occasion go too far, there is a real need for much greater public debate about the courts and the legal system, not less.

Turning to how the Lord Chancellor responded to the press coverage of Miller, there are several assumptions underlying the criticisms of Truss: (i) there was a clear need to defend judicial independence; (ii) this need triggered the s3 duty on the Lord Chancellor; (iii) vindicating this duty required the Lord Chancellor to issue a public statement; (iv) this statement had to be made within hours of the hostile press coverage of the High Court; and (v) only the Lord Chancellor was able to take effective action to defend the High Court, and in particular the judiciary was unable to take steps to defend itself. As I see it, each assumption is questionable, albeit to varying degrees, with the dubiousness of the assumptions increasing from (i) to (v).

Did the press coverage represent a clear challenge to judicial independence sufficient to trigger Truss’s s3 duty? And, if so, what was the precise nature of the challenge? The challenge is presumably not specific. There are plainly no challenges to the traditional indicia of judicial independence (security of tenure, stable and reasonable remuneration, merit-based appointments etc). And nor is there any credible reason to worry that the coverage would influence individual judges. I suspect few would disagree with Truss’s view that the High Court ‘will not be imperilled by the opinions of any newspaper’, nor for that matter the UK Supreme Court when it hears the appeal in Miller next month. If judicial independence were this fragile we would be in very serious trouble; fortunately, it is not.

The challenge is more likely to be diffuse: press coverage might contribute to an erosion of public confidence in the judiciary, a concern especially pertinent at a time of seemingly heightened public distrust of national institutions. Whether isolated press coverage represents a diffuse challenge to the independence of the judiciary seems more arguable than many of Truss’s critics concede. There is, for a start, interesting research from the United States that suggests that over-the-top criticism of the judiciary can actually buttress public support for judicial independence. I also agree with Joshua Rozenberg’s take that ‘far from striking a chord with its readers, the Mail’s coverage—which initially included an online reference to the Master of the Rolls as an “openly gay ex-Olympic fencer”—showed how out-of-touch it has become’.

However, let’s stipulate, for these purposes, that there was a diffuse challenge to judicial independence. Was this of a type to trigger the Lord Chancellor’s duty under s3? This seems more contestable than Truss’s critics concede. Section 3 is best understood as applying to—and is likely to be most effective in respect of—the Lord Chancellor’s functions relating to the funding and oversight of the judicial system and her role in encouraging her ministerial colleagues to respect judicial independence and the rule of law. (An aside: what is noteworthy about Miller is how no ministers and only a sprinkling of MPs have criticized the High Court. In this respect, I do not regard Sajid Javid’s clumsy answer on the BBC’s Question Time programme on the evening that the Miller judgment was released as anything near an inappropriate ministerial comment on a judicial decision.) There is, as I see, it a legitimate debate to be had about how wide the s3 duty can or should apply to the actions of non-governmental actors that involve an arguably weak diffuse challenge to judicial independence. The Lord Chancellor could reasonably conclude that she would satisfy her s3 duty by taking steps to ensure no minister improperly criticized the High Court.

Let’s stipulate for these purposes that the press coverage represents a sufficiently serious diffuse challenge to judicial independence to engage the section 3 duty.  Why does vindicating this necessarily require the Lord Chancellor to make a public statement? A Lord Chancellor could reasonably conclude that the duty would be more effectively satisfied by speaking in private with the editors of the newspapers concerned or their proprietors to explain the importance of judicial independence and to encourage moderation when criticizing individual judges. Part of the price for making behind-the scenes entreaties to newspaper editors and proprietors might be to forgo public comment. At the same time, the Lord Chancellor could have reasonably concluded that a public statement may make matters worse rather than better, and not least by giving more legs to the furore over Millerin ways that actually attract more attention to the press coverage in question.

(Another aside: it is ironic that Lord Falconer should fetishize public statements to safeguard judicial independence. Others have noted the irony that Falconer was himself criticized by the House of Lords Constitution Committee in 2007 for failing to condemn publicly ministerial colleagues who had criticized a judge for passing what some viewed as an unduly lenient sentence on a paedophile. The judge in question had in fact correctly applied the sentencing guidelines. This is known as ‘the Craig Sweeney affair’. The irony goes further: as I have explained elsewhere, there is reason to believe that at the time of the Sweeney affair, Falconer decided not to take public action, preferring to work behind the scenes to ensure that ministers did not intemperately criticize individual judges during the rest of Blair’s tenure as PM).

At risk of being forgotten is that Liz Truss did actually issue a press statement within 48 hours of Miller affirming the importance of judicial independence and later wrote a letter to The Times in similar terms. Lord Judge complains that Liz Truss’s statement was ‘a little too late and …quite a lot too little’. If the concern is that the coverage represents a diffuse challenge to judicial independence, then little perhaps turns on the length of time that it took Truss to issue a statement. What seems to be driving much of the criticism of Truss is that she should have acted much more vigorously and much more quickly because the judges cannot speak out on their own behalf (and, indeed, Truss has also been criticized for suggesting that the judges could have defended themselves). Here again I take a different view.

Contrary to what Lord Judge has said, there is fairly broad agreement that one consequence of the 2005 reforms is that the judiciary today has a much greater responsibility to defend their own independence. The judges have ample means to do so, including: (a) an intervention by a senior judge (for example, a head of division or the very able Senior President of Tribunals, given that the Lord Chief Justice and Master of the Rolls both sat in the High Court in Miller); (b) a ‘media panel’ of judges who are trained to speak publicly on controversial issues of public salience; (c) the Judicial Office’s Press Office can pro-actively engage with the media in ways akin to the Supreme Court’s Communication Team; (d) a retired senior judge such as Lord Judge or Lord Woolf could be a ‘proxy’ available to the media on both the day the judgment was released and the few days after; and (e) the Lord Chief Justice can raise the press coverage in the occasional meetings that he has with newspaper editors. Just as Truss could reasonable conclude that her statutory duty was not engaged, or that the duty was best discharged by taking action behind the scenes, or even that the most prudent course was to take action at a later date once the heat of the moment has passed, so could senior judges reach similar decisions (and therefore I do not criticize them for not being seen to do more in the immediate aftermath of Miller).

However, I would spare a critical word for those who seem to forget the fact that the post-2005 Lord Chancellor is not the same office as the pre-2005 Lord Chancellor. The Lord Chancellor is an ordinary ministerial office, albeit one with a special oath and statutory duty. Lord Judge is flat-out wrong when he suggests that ‘the whole point of the Lord Chancellor’s job is that he or she is there to taken an independent line’. For better or worse, the whole point of the 2005 Act was to standardize the office of Lord Chancellor so that he or she would take a governmental line on matters relating to the judicial system. For all of the references to the separation of powers, the essential motivation behind the 2005 reforms was to mould the role of Lord Chancellor into one better able to deliver on government policy priorities. Part and parcel of this was the 2005 Act stripping the office of the attributes that previously made its occupants well positioned to defend the independence of the judiciary (i.e. the requirement to be legally qualified, sitting in the Lords, with the person appointed to the role typically in the twilight of their professional career). This does not mean that Lord Chancellors cannot defend judicial independence; they can and do. But it does mean that there will be limits on the ability of the officeholder to serve as an effective guardian of judicial independence. And at the end of the day, post-2005 Lord Chancellors will tend to be more reactive than pro-active, doing the right thing, only after exhausting all the other possibilities.

*   *   *

It is striking to contrast the hyper-critical reaction of the legal community to how Truss approached her s3 duty with the overwhelmingly muted reaction to Lady Hale’s comments on Miller. Earlier this month, Lady Hale delivered a lecture to law students in Malaysia, in which she commented on Miller. Most of the speech was wholly unremarkable, similar to speeches that Lady Hale has delivered with gusto and verve at universities all across the UK.

Around 600 words of the speech are devoted to the Article 50 litigation. Most of these words are devoted to a short and accessible summary of the main legal issues in Miller, with Lady Hale taking care to outline the primary arguments of each side. (Some might quibble that her summary reveals a misapprehension of some of the legal issues, but a more generous reading is that Lady Hale offered an appropriately anodyne summary). However, she ventures beyond a mere summary of the legal questions argued before the High Court, where she says ‘another question is whether it would be enough for a simple Act of Parliament to authorize the government to give notice [under Art 50], or whether it would have to be a comprehensive replacement for the 1972 Act’. This question formed no part of: (a) the High Court’s judgment, (b) the skeleton arguments of the two leading claimants; (c) the relief sought by the claimants; or (d) oral argument before the High Court, except indirectly.

Lady Hale should not have raised this question, and exhibited poor judgment in doing so. A basic constitutional duty imposed on all judges—but especially applicable to judges in top courts—is to take considerable care and exhibit due caution if proposing to discuss an issue which might subsequently come before their court. Judges ‘are human beings, not robots’, as Lord Hope has remarked, and ‘[i]t is not always easy to know when the line between what is acceptable …and what is not is being crossed’. This is not an occasion where it is difficult to know if the line was crossed; unfortunately, it was. Indeed, it is important to emphasize quite how awry Lady Hale’s judgment was on this matter. This was not an inexperienced judge commenting on a case that may or may not come before them at some unknown juncture. This was a very experienced judge publicly commenting on probably the most high profile and portentous cases to come before the UK’s top court. She did so knowing that the case would be appealed to the Supreme Court, and that all 11 of the Justices would hear the case in a matter of weeks. Even a cursory review of the media in the days before the lecture would have made clear how ill-advised it would be to say anything about Miller, and let alone raise a question not argued before the High Court. (All of this should have been obvious quite apart from the reaction to the Miller judgment itself; the political sensitivity of the Article 50 litigation has been plain for everyone to see since the summer).

In a press release defending Lady Hale, the Supreme Court concedes that Lady Hale raised a question that was not before the High Court. The press release characterized the question of whether a comprehensive statute is required to give notice under Article 50 as ‘not a new issue’ on account of the fact that ‘a number of politicians have raised the same question’. This merely underscores how far Lady Hale’s comments veered from a mere impartial summary of the legal arguments before the High Court. There is perhaps a tendency for some lawyers to implicitly apply a de minimis threshold to what represented just a few words in Lady Hale’s much longer speech. However, as Matthew Scott notes, ‘anodyne though it appears at first reading, [the question raised by Lady Hale] is in fact politically explosive’. Media reports suggest that if it loses before the Supreme Court, the Government plans to introduce a simple Bill, and indeed anything else would raise problems for the Prime Minister’s Brexit timetable.

Many lawyers have rallied (sometimes seemingly unthinkingly) to Lady Hale’s defence, downplaying the extent to which her comments veered from the legal questions in Miller and minimizing her error of judgment. Lady Hale suggested that it would have been ‘discourteous’ to her Malaysian hosts not to touch on Miller in her speech. A more pertinent consideration might have been to pay appropriate courtesy to the parties in the case, her colleagues on the Supreme Court and the High Court by not raising an issue that had not been argued in the litigation. Matthew Scott is a lone voice in calling on Lady Hale to recuse herself. For my part, I suspect that Lady Hale’s comments fall short (and indeed quite some distance short) of the recusal test as set out in cases like Porter v Magill and Locabail. I doubt that a fair-minded and informed observer, after having considered the facts, would conclude that there is a real possibility that Lady Hale is biased. Nor do I think that Hale can be taken to have expressed a view on the case. There nevertheless remains a space short of recusal where judges should be criticized for exhibiting poor judgment; a zone of recklessness short of recusal, if you will.

In a speech in 2012 on the risks of judicial speech-making, the President of the Supreme Court, Lord Neuberger, cautions that ‘judges should think carefully of their audience, and the impact their comments might have upon it, and upon any wide audience, including the media’. Judges must demonstrate ‘much care, circumspection, rationing and even self-denial, when it comes to considering whether to speak, what to say and how to say it’. Neuberger concludes that it ‘calls for an understanding by all concerned of the proper boundaries within which comment can properly be made’. On this occasion, Lady Hale failed to exercise appropriate care and circumspection. As it happens, Hale’s comments strike me as a clear error of judgment and at the same time unlikely to have any lasting effect on public confidence in the Supreme Court or the judiciary more generally. (I do wonder, however, whether Lady Hale’s comments might have encouraged the Daily Telegraph to give so much prominence to tweets by Lord Neuberger’s wife).

But the consequences of Lady Hale’s comments have an individual as well as an institutional angle. At a time when some speculate that Lady Hale might become President of the Supreme Court on Lord Neuberger’s retirement next year, this episode might be cited as evidence of a lack of the diplomatic skills, (small-p) political judgment and sure-footedness that is essential for a leadership role such as the Court’s President. The commission that will select the Court’s President will of course reflect on applicants’ professional life in the round—and in this respect Lady Hale has made many valuable contributions to public life—but the commission will pay special attention to each candidate’s political nous. At the very least Lady Hale could be said to have shown on this occasion a shaky grasp of the political and media environment in which top judges now operate if (as reported by the Solicitors Journal) ‘she had not expected her speech to be so quickly picked up by the press or that it would receive such a wave of criticism’. This is surprising since—unlike Liz Truss who has been in her office four months and is still coming to terms with her new ministerial brief—Lady Hale has been on the top court for 12 years, has herself often been at the centre of press coverage and is very familiar with the constitutional duty that judges must exhibit due caution when talking about legal issues that may come before them.

*   *   *

My suggestion, then, is that Liz Truss’s failings were arguable and not manifest, whilst Lady Hale’s were unarguable and manifest. There might, then, be scope for legitimate criticism of both. What is striking is to compare how few lawyers thought Lady Hale’s comments worthy of public criticism, yet so many seemed keen to criticise Liz Truss in the days after the High Court’s judgment in Miller.

The legal community seemed to jump to the defence of Lady Hale but jump on Liz Truss. I acknowledge that the legal community has a special obligation to defend judicial independence (although I would add that there are examples of both lawyers and judges invoking the rubric of judicial independence to stymie proper accountability and public debate, as well as occasions where appeals to judicial independence were more about protecting judicial self-interest than the public interest). But might one not have expected those who were so quick to criticise Truss for failing to protect the institutional integrity of the judiciary to be equally fastidious in criticizing Lady Hale for failing to have due regard to the possible effects of her comments on Miller for the judiciary as a whole? This asymmetry does not reflect well on the legal community. Not only does it risk improperly insulating senior judges from legitimate criticism, it also exposes the dominant legal mindset as tending to run in one direction: ‘judges good, politicians bad’.

Author

Professor Graham Gee

Professor Graham Gee
Judicial Power Project Read Full Bio

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