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Constitutional law academics speak out on claims Liz Truss has broken the law by not sticking up for Brexit judges

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Lord Judge said she breached her statutory duty, but do the professors agree?

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Constitutional law experts are split on whether Liz Truss has acted unlawfully by not defending three of the country’s top judges in the face of tabloid media attacks.

Justice Secretary Truss has been slammed by numerous lawyers for her response — or lack thereof — to scathing newspaper headlines about judges involved in the Brexit High Court challenge. Tension between the profession and the right-wing media hit fever pitch when the tabloids referred to the Lord Chief Justice, Sir Terence Etherton and Lord Justice Sales as “enemies of the people” for ruling against the government in the Miller case.

Truss — who as Lord Chancellor is statutorily obliged to defend the independence of the judiciary — was slow to issue a response to these attacks, something that has not only riled lawyers but may well be unlawful.

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That’s according to former Lord Chief Justice Lord Judge (pictured above) anyway, who thinks Truss’s near-silence may constitute unlawfulness. He explained to The Times (£):

It is very serious. At the heart of it is a constitutional obligation on the Lord Chancellor to speak and on this issue there has been silence.

Though these are strong words from Judge, there appears to be some support for his view among constitutional lawyers.

Take James Lee, King’s College London senior lecturer. He told Legal Cheek:

I agree with my colleague Lord Judge that the governmental response to some of the media coverage of the decision in Miller has been regrettable and arguably breaches the guarantee of continued judicial independence in s3 of the Constitutional Reform Act 2005. S3(1) provides that not only the Lord Chancellor but all ministers of the Crown (including the Prime Minister) must uphold the continued independence of the judiciary. The Lord Chancellor has additional duties imposed upon her by s3(6), which include having regard to ‘the need to defend that independence’. These duties are admittedly not particularly well defined beyond that. But the delay in responding, the pusillanimous, generic statement which was eventually circulated, and the spurious suggestion that ‘freedom of the press’ is of equivalent weight in this context and thus justifies inertia, are all signs that these statutory duties were not sufficiently at the forefront of the Lord Chancellor’s mind.

More sceptical of Judge’s opinions, however, is former government lawyer and legal commentator Carl Gardner. Though he agrees Truss “ought to have stood up better” for Etherton and co, he continued:

Whether she’s really breached the law in any concrete sense is another question. The problem with the sort of statutory duty she has is that it’s so vague. How do you know when someone fails to ‘uphold the independence of the judiciary’? And how do you enforce the duty?… The only real bite laws like this have, I think, is that they allow critics like Lord Judge to raise essentially rhetorical points like this.

Whether her actions amount to a breach of statutory duty or not, it certainly hasn’t been a great month for Truss. We hope she can take some comfort in the knowledge she now has a really great parody Twitter account.