Recently, they have been puzzled by the strong reaction to R(Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), which decided that Parliament, rather than the Executive, should be charged with notifying the European Union (EU) of our decision to leave its ranks. Why, they have asked, was a decision upholding what they understand is our primary constitutional principle, the sovereignty of Parliament, been so denounced by some members of Parliament and the media who supported the leave Europe campaign largely because it would restore sovereignty to the British Parliament? Why was there such a clamour to persuade the Lord Chancellor to defend the judges from these attacks? Incidentally, the visitors are also curious to know why Liz Truss, our Lord Chancellor, who also bears the title Secretary of State for Justice, is not legally qualified. (Some ask too why she is not known as Lady Chancellor.)

The visitors were particularly amazed at the vehemence of some of the press criticism of Miller. The Daily Mail called the three senior and respected judges who decided the case ‘enemies of the people’ who ‘had declared war on democracy’ by ‘defying 17.4 million voters’. The Telegraph referred to ‘The plot to stop Brexit’. The Sun and The Express expressed similar views. Elsewhere, allegations were made about the impartiality of the judges who had decided the case, as well as those who would hear it on appeal in the Supreme Court, on the ground of their ‘European connections’. The press also made known that one of the judges was ‘openly gay’. Even the claimants who initiated the case were derided and belittled.

After a few days’ silence the Lord Chancellor stated laconically that the ‘independence of the judiciary is the foundation upon which our rule of law is built’ and the Prime Minister briefly expressed her support for both judicial independence and the freedom of the press. In a subsequent letter to The Times the Lord Chancellor expressed her confidence in the judges in the Miller case but refused to go further so as to avoid interfering with the freedom of the press or to ‘censor headlines’, which she did not believe had ‘imperiled’ judicial independence.

Constitutional reform: a quick recap

It is important to explain to our visitors that, despite some continuing anachronisms, the office of Lord Chancellor was significantly modernised in 2005 through the Constitutional Reform Act of that year. Up to then the office had been held by senior lawyers of the highest rank, albeit always men. The need for reform had nothing to do with their competence or independence in fact, but because the role’s combination of different functions offended the appearance of the separation of powers. The Lord Chancellor used to appoint all judges, yet he also sat occasionally as a judge in the then Appellate Committee of the House of Lords. He was also a member of the cabinet, thus part of the Executive, but also sat on the ‘woolsack’, thus acting as speaker of the House of Lords in its legislative capacity.

In the early 1990s new constitutions were being drafted all over Central and Eastern Europe following the fall of the Soviet Union. Some countries would plead the British model as an excuse to continue the practice of judges being appointed by, and responsible to the executive, and therefore not independent in appearance or fact. The Blair government, for this and other reasons, decided to reform our system by placing judicial appointments in the hands of an independent commission. Our highest court would in future be separated from the House of Lords and established as The Supreme Court of the United Kingdom. Although the title of Lord Chancellor would be retained (together with some of the office’s minor roles), the holder of the post would also be called Secretary of State for Justice and no longer be able to sit as a judge or on the woolsack.

There was a debate about whether the Lord Chancellor’s new role required legal qualifications. After all, our ministers of health have never been required to be qualified doctors. There has also been a marked decline in the pool of experienced lawyers in Parliament from which to draw Lord Chancellors who matched previous expertise. In the end a compromise was reached, leaving open the possibility of appointing a non-lawyer (where an effective political advocate and administrator was preferred) but placing upon the incumbent, legally qualified or not, an express statutory duty to respect, protect and defend judicial independence as well as the ‘existing constitutional principle of the rule of law’.

Censure is not censorship

Should the Lord Chancellor have invoked these duties by rebutting the press charges more vigorously than she did? She was surely wrong to say that, by contradicting or correcting the press reports she would be seeking to censor them. Rebutting the content of the attacks on judges need in no way question the freedom of the press. It simply engages with the substance of the allegations. Nobody could accuse the Secretary of State for Health of censorship when defending the integrity of our medical profession from press attacks. Censure is not censorship. On the other hand, the Lord Chancellor need not intervene on each occasion the media attack a judicial decision. We have, fortunately, repealed the former crime of contempt by ‘scandalising the court’ and judicial decisions are, and need to be, open to criticism. She should employ her duties sparingly and strategically, giving a wide margin of discretion to the press generally.

Defending their coverage of the Miller case, the relevant press have claimed that the backgrounds and connections of judges are valid objects of public interest on the ground that judicial decisions are inevitably influenced by such matters. They point to the frankly political scrutiny of judicial nominations in the United States. This view ignores the much greater opportunity for judges, under the Americans’ relatively vague bill of rights, to express their personal political points of view through their judgments. Those opportunities were hardly open to the judges in the Miller case. Nevertheless, the allegation of ‘European’ connections on the part of the judges in Miller may not in itself be sufficient to invoke the Lord Chancellor’s duties, especially as the evidence of bias is so tenuous. Nor might the comment on the sexual orientation of one of the judges alone merit a mention, although it would be disingenuous not to recognise its malign intent.

Stemming the risks of damage

The charge against the judges as being ‘enemies of the people’ (and other similar formulations) is, however, of a different order. It is based on a massive distortion, namely, that the Miller decision seeks to overturn the result of the Brexit referendum. In no way does the judgment come close to that. It deals narrowly with one issue, namely, whether the notification under Art 50 of the Treaty on European Union to withdraw from the Union was a matter for Parliament rather than the Executive. It does not remotely touch on whether a notification should be given at all and therefore was miles away from seeking to alter the referendum’s result.

The Lord Chancellor decided not to counter any of these charges in any detail on the ground that the judiciary is sufficiently resilient to withstand this kind of intimidation. This is no doubt true. It is likely only to strengthen their commitment to independence. However, resilience is not the only factor to take into account. Another is public confidence in the judiciary’s integrity. What could be calculated to dent that confidence more than what is, in effect, a charge of insurrection (that the judges sought to nullify the expression of the popular will legitimately arrived at)? It is more than possible that that false message has taken firm hold in significant corners of public opinion, and is likely to spread further if left unchallenged.

There is another important reason in favour of a more expansive intervention by the Lord Chancellor. We should not forget the press’s scurrilous attacks on Gina Miller, the brave lead claimant, and the other claimants, who performed a public service in allowing this key constitutional case to be taken forward. The manner in which they were disparaged smacks of the kind of intimidation of civil society organisations which facilitate the litigation of human rights issues in today’s China and Russia. It threatens access to justice, which is a key ingredient of the rule of law.

The media campaign against the judges is of course part of a wider crusade against ‘European’ rights, enforced by ‘unelected judges’. But the remarks in the aftermath of the Miller decision attained a new level of vehemence which was tailored to intimidate both judges and litigants, and to damage public confidence in an impartial and independent judiciary. In the context of the present charged political climate, a prudent Lord Chancellor should surely have acted to stem the risk of damage that such misleading and inflammatory allegations may cause.

Contributor Sir Jeffrey Jowell QC, Blackstone Chambers