Lord Martin Thomas warns the Government against interfering with judiciary independence

Liberal Democrat Voice is pleased to see Lord Thomas of Greenford back in his usual place in the House of Lords, following a period of ill-health. Yesterday, he made a typically punchy intervention during the Queen’s Speech debate warning over potential political interference with the judiciary…

My Lords, in 1978 I was the guest of a senior lawyer in Philadelphia, Pennsylvania. That evening at home, he answered a phone call and came back wreathed in smiles: “The Republicans are struggling to get their legislation through the State Senate”, he told me. “The Democrats have told them they have to pay a price, and I’m the price: they’re making me a judge.”

On Monday of this week, a senior lecturer in the Cardiff Law School, Mr Bharat Malkani, was randomly selected by the research organisation Kantar to take part, as a member of the public, in a survey concerned with the independence of the judiciary. There were two questions. The first was, did he think the judiciary sufficiently independent from government? The second was, why is the judiciary independent? Was it lack of political interference, costs, or lack of interference from the media? When Mr Malkani asked on whose behalf the survey was being conducted, he was told that he could not be given that information until he had answered the questions. When he had finished answering, he was told it was on behalf of the Government. He phoned Kantar back later to check and was then informed that it was simply an in-house survey and had no connection to the Government at all. What is this all about? What is going on?

In recent months, as the noble and learned Lord, Lord Judge, observed, we have seen tensions. The Executive, without majority support in Parliament, unlawfully attempted to frustrate Parliament’s deliberations by way of Prorogation, relying upon prerogative powers of the Crown not deployed since the days of Charles I. Parliament reacted with unprecedented procedures, which were open to it only because the Government did not have the votes. Boundaries which were thought to be understood were crossed and the Supreme Court had to sort out the mess. Who else could have done it? The judges were portrayed by the Government, however, as unelected, unaccountable and anti-democratic: an echo perhaps, of the Mail’s “Enemies of the People” tag. The Government obviously find it difficult to get over losing a case. Anti-democratic? As Lord Bingham pointed out in a leading case:

“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”

In Emlyn Hooson’s Chester chambers, in the elections of the 1960s, 1970s and 1980s, five of us stood as Liberal candidates — we have one over there. Another fought Lord Roberts of Conwy for Plaid Cymru and there was even a Conservative contender, for a valleys seat in south Wales. I welcome the noble Lord, Lord Davies of Gower, and particularly welcome his support for the A55 — a north Wales road, I note — which runs into the Irish Sea, and the new Irish border, somewhere to the west of South Stack, Holyhead.

The well-worn track, however, between the Temple and Westminster was becoming rocky. For a young barrister, political involvement risked a black mark. None of the current Supreme Court justices appears to have had a juvenile fling at politics, although I note that one of them once owned a racehorse called, provocatively, “Young Radical” — something we all thought we were. Now there are these vague proposals, in the Conservative manifesto and in the Queen’s Speech, to establish a constitution, democracy and rights commission. Protecting the Constitution, the paper published by the right-wing think tank Policy Exchange on 28 December, expresses alarm at the entry of the Supreme Court into the political arena. The authors appear to see the Supreme Court justices, hitherto political virgins, coming together as a collective body with a determination to seize political control and promulgate new laws. We heard an echo of that in the speech of the noble Lord, Lord Strathclyde, who referred to “imaginative” new laws.

It is a highly regressive document, even calling for the removal of the title of “Supreme Court” and reverting to the wording of the Victorian Act of 1876 when Lords of Appeal in Ordinary were created to man the Judicial Committee. The authors of the paper write:

“If appeals against judgments were reviewed, in the words of section 4 of the Appellate Jurisdiction Act 1876, before Her Majesty the Queen in her Court of Parliament, it might be much less likely that the UK’s apex appellate court would mistake its position in relation to the Houses of Parliament.”

Accordingly, this paper — the basis of Tory policy — calls for the renaming of the Supreme Court as the “Upper Appeals Court” to emphasise its inferiority to the political sovereignty of Parliament and the Executive. That may not be quite compatible with the concept of independence of the judiciary as the third pillar of our democracy. Are we on the way to Philadelphia?

* Martin Thomas is a Liberal Democrat member of the House of Lords and the party's Shadow Attorney General

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  • ฺBroadly the Tories see the courts as defenders and upholders of an establishment that protects their own interests and not the rights of others.

  • Innocent Bystander 10th Jan '20 - 9:08am

    The Supreme Court is not supreme and its title is misleading. Lawyers appear to have a very high opinion of themselves but I am the supreme arbiter in this nation and they would do well to remember it.
    I admit that I share this power with the other 44,775,799 electors but we have demonstrated that their recent victories over the govt. have been nullified by our humble little pencils in our cheap, but functional, plywood booths.
    I recommend that m’learned friends learn some humility and not try our patience again.

  • Innocent Bystander

    The court rulings – the Supreme Court included – all reinforce that. Every attempt by both Leave and Remain sides (but mainly, Remain) to find “one weird legal trick” which would mean they won by default went to the courts and was rejected.

    Almost all of these were losses for the Remain side. Johnson’s attempt to avoid Parliamentary votes through prorogation was one of Leave’s few legal losses – and deservedly so for adopting the Remain side’s legal trick tactics.

    Consistently the courts have reinforced the message that political decisions should be taken by political means – elections, referenda, votes in Parliament – and neither side should be able to ignore that when it suits them.

  • Julian Tisi 10th Jan '20 - 9:36am

    An excellent speech. Until last month, Boris Johnson was an unelected PM leading a minority government which had even lost its working Commons majority, trying to push through the most profound legislation (EU withdrawal) through without Parliamentary scrutiny by effectively suspending Parliament. It was a flagrant abuse of democracy and the rule of law. Now that the Conservatives have a parliamentary majority it appears they’re trying to take revenge on those who rightly stood up to them. A disgrace.

  • Julian Tisi 10th Jan '20 - 9:40am

    cim – the “legal tricks” you refer to simply required Parliament to debate and approve the terms of withdrawal, nothing more.

  • Julian Tisi

    Yes – that was the other time the courts ruled in Remain’s favour, and again on an issue of “should this be decided democratically in Parliament? Yes, obviously”. Likewise a future government shouldn’t be able to invoke A49 to rejoin (or request to become a US state?) without Parliamentary approval, for much the same reasons.

    I’m thinking more of the attempts to find technicalities in the last year or so that would make Brexit (at all or on specific terms) impossible even with Parliamentary approval, or the attempt to argue that standing next to a bus as part of a political campaign was misconduct in public office, or similar. The courts rightly ruled that those weren’t appropriate routes … and if as much energy had been put into convincing the public as had been put into failing to convince judges to overrule them, the recent election might have gone a bit differently.

  • Julian Tisi 10th Jan '20 - 1:23pm

    Actually that’s fair. I agree that some of the “Brexit is illegal” routes pushed by some on the Remain side were dubious. But these were pushed by only some of the remain side.

  • Peter Hirst 14th Jan '20 - 2:02pm

    One issue is that the judiciary have virtually nothing to adjudicate on. We need a codified constitution that a separate constitutional court would defend. The judiciary depends on clarity and our political system relies on ambiguity. It will take a sea change to alter this.

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