Liz Truss may have broken law in failing to defend Brexit judges, warns former lord chief justice

‘She answered to Downing Street when she should have been independent,’ says Lord Judge

Harriet Agerholm
Saturday 19 November 2016 14:20 GMT
The Lord Chancellor waited nearly 48 hours before responding to backlash against the High Court Brexit ruling
The Lord Chancellor waited nearly 48 hours before responding to backlash against the High Court Brexit ruling (Getty)

Liz Truss has failed in her statutory duties and may have broken the law by keeping a near-silence in the face of a torrent of abuse targeting three high court judges, a former Lord Chief Justice has warned.

After the Brexit ruling – in which three judges declared the Prime Minister needed parliamentary approval to trigger Article 50 – the justices were met with a wave of highly personal vitriol, with the Daily Mail branding them “enemies of the people”.

Ms Truss’s failure to come to the defence of the judiciary for nearly 48 hours – and her lukewarm response when she did – means if she were taken to court she would likely be found to have acted unlawfully, Lord Igor Judge said.

He claimed the Lord Chancellor’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,” he told The Times.

Lord Judge, who served as Lord Chief Justice from 2008 to 2013, said Ms Truss’s hesitation in responding and the wording of her eventual statement, which was similar to a comment made by the Prime Minister, indicated she had collaborated with Downing Street.

“If I am right, the Lord Chancellor asked the Prime Minister or No 10 to have some sort of input into what she said about attacks on the judiciary. And the whole point of the Lord Chancellor’s job is that he or she is there to take an independent line,” he said.

The former top judge’s remarks were echoed by Labour’s shadow Lord Chancellor Richard Burgon, who wrote earlier in November: “When Truss took office she swore an oath to uphold the independence of the judiciary and the rule of law.

“A mature democracy – and a mature government – doesn’t stand by while the judiciary gets a roasting.”

One leading QC, who did not want to be named, told The Independent: "Her failure degraded the position of lord chancellor and it may be that other constitutional requirements will have to be made if the [she] can't uphold the independence of the judiciary.

"This particular lord chancellor has no respect among the legal profession and it may be that the historic duty to uphold the independence of the judiciary should devolve to someone else.

"She has not done her legal duty, but other distinguished lawyers think that even if she did, she wouldn't be up to [the job].

They added: "Anyone could take her to court — but the real question is whether she is capable."

Relations between the judiciary and the Government appeared to deteriorate further following the Brexit ruling when six high court judges launched legal action against Ms Truss on the grounds they had been discriminated against.

Ms Truss told The Times: “An independent judiciary is the cornerstone of the rule of law. I take my duty as Lord Chancellor to defend that independence very seriously.

“The High Court judges have exercised their independence and made a ruling ‘without fear or favour’ in accordance with their oath.

“I defended that independence following the decision. The important thing now is that legal process is followed.”

Following the decision that Parliament must be involved with triggering Article 50, Theresa May has changed her legal case for the right to start Brexit without MPs consent.

The Government's new tack is to argue Article 50 will not directly affect the rights of British people.

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