Liz Truss’s attacks on the judiciary are a travesty

Liz Truss as Lord Chancellor
Liz Truss as Lord Chancellor

For a former Lord Chancellor, Liz Truss is surprisingly ignorant of the workings of the judiciary and the principles of the constitution. In a series of interviews and articles, she has accused the Blair government of trashing the constitution, called for the abolition of the Supreme Court and labelled the judiciary a self-perpetuating Left-wing oligarchy determined to obstruct the Government’s agenda.

Her criticisms of the Human Rights Act, which incorporated the Human Rights Convention into our domestic law, have some force, although in fairness to the Blair government, it should be pointed out that the mismatch between English domestic law and the UK’s international obligations under the Convention was causing serious problems. An alternative solution would have been to withdraw from the Convention, but there was no appetite for that on either side of the political divide in 1998. That may change as a result of the increasingly obvious political ambitions of the European Court of Human Rights in Strasbourg.

Of course, British judges have given effect to the Human Rights Act, but they can hardly be blamed for that while it remains the law of the land. Nor can they be criticised for being guided by the decisions of the Strasbourg Court, which is a seriously aberrant tribunal but is the authorised interpreter of the Convention under a treaty to which the UK has signed up. It is regrettable that the UK has not reviewed the status of the Convention and the Strasbourg Court in the light of recent developments, but that is the fault of politicians, not judges.

To describe British judges as a self-perpetuating oligarchy is a travesty. They are nominated by the Judicial Appointments Commission, a non-political body with a minority of judicial members. Judges inevitably come from similar backgrounds because they are all lawyers at the top of their game, and lawyers are by definition middle class even if they did not start out that way. But they are not particularly “Left-wing”. In my experience, their opinions cover the entire political spectrum, apart from the extremes.

In proposing the abolition of the Supreme Court, Liz Truss is repeating the hoary old fallacy that it was a constitutional innovation which was given extra powers by Tony Blair’s government. Its powers and practices are in fact no different from those of the Appellate Committee of the House of Lords, which performed the same functions before 2009. There is not a single decision of the Supreme Court that could not equally have been made by the Appellate Committee.

Ironically, in view of Ms Truss’s criticisms, it is the Supreme Court that has taken the lead in reining in judicial activism. It was Lord Reed, the current President of the Court, in a judgment rejecting a challenge to the Government’s benefit cap policy, who observed that such questions “can only be determined, in a Parliamentary democracy, through a political process which can take account of the values and views of all sections of society”. But Ms Truss does not seem to have noticed that.

She pays lip-service to judicial independence, but the general thrust of her thoughts is that judges should do what ministers want. She wants to abolish the Supreme Court because it does not always accept the Government’s case. She wants to revert to the system by which the Government appoints judges, presumably so that it can appoint judges who are politically to its taste. Like Donald Trump. She wants to beef up the office of Lord Chancellor so that she can ensure that the judiciary is “subordinate to the executive in Parliament”.

She is apparently under the impression that that was how it worked before 2005. But Lord Chancellors have never had power to subordinate the judiciary to the executive, whether in or out of Parliament. On the contrary their constitutional role was to defend the independence of the judges in Cabinet against all comers, including ministers.

It is certainly unfortunate that the Lord Chancellor no longer performs that role. But that is not because of Blair’s reforms. It is because since 2005 the Lord Chancellor has too often been a politician of little political stature and no experience of the legal system. The Lord Chancellor who declined to intervene when the Daily Mail printed its “Enemies of the People” headline was none other than one Mary Elizabeth Truss.

Lord Sumption is a former Supreme Court judge