Justice Secretary Liz Truss has been subjected to a scathing two-pronged attack by the most senior judge in England and Wales after her failure to defend three judges smeared as “enemies of the people” in the wake of a high court ruling on Article 50.
Lord Chief Justice, Lord Thomas of Cwmgiedd also criticised Ms Truss for “misleading” the public after she incorrectly announced new rules for rape victims who are providing evidence at trial.
Regarding the High Court’s November 2016 Brexit ruling, in which three judges ruled that Parliament, not the Prime Minister, must trigger Article 50 in order to start the UK’s exit from the European Union, Lord Thomas said Ms Truss was “completely and utterly wrong” by keeping a near-silence in the face of a torrent of abuse directed at the judiciary.
At the time, The Daily Mail front page called the judges “enemies of the people”, while The Daily Telegraph ran with: “The judges versus the people”.
The three judges were subsequently met with a wave of personal vitriol.
Lord Thomas told Lords Constitution Committee: “The circuit judges were very concerned. They wrote to the Lord Chancellor because litigants in person were coming and saying ‘you’re an enemy of the people’.
“It is the only time in the whole of my judicial career that I have had to ask for the police to give us a measure of advice and protection [for Gina Miller, the lead claimant in the case] in relation to the emotions that were being stirred up.”
Former Lord Chief Justice, Lord Igor Judge, said at the time that Ms Truss’s silence constituted a “very serious” failing in her legal obligations: “She is in relative terms a very inexperienced politician with no legal experience, who has been silent, and answered to Downing Street when she should have been independent.”
Lord Thomas said it was Truss’s explicit duty as Lord Chancellor to defend the judges.
He said: “I regret to have to criticise her as severely as I have, but to my mind she was completely and absolutely wrong. And I am very disappointed,” he said.
“I can understand how the pressures were on in November, but she has taken a position that is constitutionally, absolutely wrong.”
Ms Truss said she “supported the freedom of the press”, later adding: “I think it is dangerous for a government minister to say, ‘this is an acceptable headline and this isn’t an acceptable headline’.”
Lord Thomas told peers: “There is a difference between criticism and abuse, and I don’t think that is understood. I don’t think it’s understood either how absolutely essential it is that we are protected.”
According to The Guardian, a Ministry of Justice spokesman said: “An independent judiciary is the cornerstone of the rule of law, and it is the duty of the Lord Chancellor to defend that independence.
“The Lord Chancellor takes that duty very seriously. She has been very clear that she supports the independence of the judiciary, but that she also believes in a free press, where newspapers are free to publish, within the law, their views.”
Rape trial reforms
Lord Thomas also criticised Ms Truss’s department for putting out inaccurate information about a pilot scheme to allow rape victims to provide pre-recorded testimonies.
Last week the Ministry of Justice published an announcement saying that following the successful pilot of the scheme, victims of sex attacks “will soon be able to have their cross-examination pre-recorded before trial”, across the whole country.
This was incorrect. The pilot schemes which had taken place in Kingston-upon-Thames, Leeds and Liverpool Crown Court are the only ones which will be extended to include adult sex assault victims.
Lord Thomas said: “There was a complete failure to understand the impracticalities of any of this.
“The Ministry of Justice is under-resourced. They do not have enough people to understand.”
In order to rectify Ms Truss’s inaccurate announcement, Lord Thomas wrote to senior judges to correct the “misleading impression”, the Ministry of Justice had given.