How long the smiles

In 50 years, that photo will be in all constitutional history books. Lord Thomas and Sir Terence Etherton, all smiles, are flanking a man who, a few moments later, will pledge his ‘unflinching’ support to the rule of law and an independent judiciary.

On 19 June, Aylesbury MP David Lidington delivered his swearing-in speech and skilfully covered over the yawning cracks his predecessor opened in the relationship between judges and government.

Liz Truss was already on the way out when, a few days earlier, the Lord Chief Justice gave this year’s Michael Ryle memorial lecture. Although the setting for the event was an intimate room in Westminster, the speech was a public declaration for the widest possible consumption.

Lord Thomas, one of the three article 50 judges targeted in the infamous ‘Enemies of the people’ headline, has clearly been affected by the incident. Judges can’t and shouldn’t explain themselves. So, what could have been the response to the tabloid agitators?

The Lord Chief Justice’s annual press briefing in the week following the rabble-rousing headline was the first opportunity to set out his view. At that stage, it was a modest invitation to draw a line between criticism and abuse. Appearing before the Constitution Committee in March, he was more forthright, saying Truss’s failure to defend the judges had been ‘completely and utterly wrong’. This was followed last month by warnings about ‘unprecedented’ levels of attacks against judges.

Revisiting the issue in last week’s Ryle lecture, the Lord Chief Justice said that, although press abuse is rare, the media have on occasions targeted the judiciary with ‘language used most commonly by totalitarian regimes’. Such abuse – and this is the important point – was ‘corrosive of public confidence in the judiciary and the rule of law’.

But where, in practice, do you draw the line between criticism and abuse? Abuse may be morally inappropriate but when does it become constitutionally wrong?

In a democratic society built on the balance of powers between the various branches of the state, an attack on judges is potentially an attack on the system as a whole. It implies that, because judges cannot speak out, the other branches of the state must rally in support, Lord Thomas says.

The new justice secretary has made clear his wish for a return to a more amicable relationship between the government and the judiciary. One where the three branches of state have ‘mutual respect’ for each other. His track record suggests he is genuine.

But Truss’s short lacklustre stint in the post is evidence we should not take this for granted. Assaults on justice and the rule of law are not just perpetrated by active saboteurs. They can also result from the passiveness of ministers who, like Truss, didn’t believe the hatred-inciting headline warranted a response.

Further, despite his rule of law credentials, Lidington is a minister in a government pursuing an ambiguous justice agenda. He presides over a system devastated by legal aid cuts, court closures, and budgetary constraints, where alternatives, such as online courts, have yet to prove to be a panacea.

Lidington must also tackle a problem with far worse consequences than rabid headlines. One Lord Thomas alluded to in his lecture and which underpins the whole concept of justice: commoditisation. A vocabulary that describes litigants as court users or customers imports a set of values that have nothing to do with the rule of law and turns justice into a profit centre.

‘One illustration is the characterisation of the courts as being service providers akin to a utility like water supply, of litigants exercising their constitutional right of access to the court to vindicate their rights, to being consumers who, like any other consumer, must pay for the service they receive.’

Lord Thomas is not against the proposed online court. His reservation is about funding and the person of the Lord Chancellor’s ability to obtain sufficient resources from the Treasury. The honeymoon between the new justice secretary and the judiciary has started well, but the question now is whether Lidington will do the right thing so that the smiles are still here this time next year.

Jean-Yves Gilg is editor-in-chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg