Analysis

How lawyers forced Theresa May to back the judiciary

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Legal profession takes centre stage in constitutional crisis as Liz Truss left exposed

@davidschneider
@davidschneider

An extraordinary weekend has seen the legal profession unite to force Lord Chancellor Liz Truss to back the Brexit judges — only for her limp statement to cause Prime Minister Theresa May to intervene

The saga began on Friday with various lawyers using Twitter to ask why Truss had failed to condemn that morning’s tabloid newspaper attacks on the three top judges who ruled against the government in Thursday’s Brexit legal challenge hearing.

During the course of the afternoon Guardian columnist Polly Toynee asked “Where’s Liz Truss?” and reminded her followers that the Justice Secretary’s constitutional role “requires her to uphold rule of law and defend judiciary”. A hashtag soon formed.

By Saturday morning the #WhereisLizTruss had been wholeheartedly seized upon by the legal Twitterati.

And by lunchtime it was viral as celebs got involved.

Scenting blood, the Bar Council — whose members were by coincidence convened in a meeting on Saturday — scrambled together to pass a quick resolution “calling on the Lord Chancellor to condemn the recent attacks on the judiciary as a matter of urgency” as it expressed “regret” at “the lack of public statement”.

At 1:30pm the press release appeared as the lead story on the BBC News website.

And, hey presto, just before quarter past two the Ministry of Justice tweeted this statement from Truss.

Then things got really interesting…

Rather than accept Truss’s words, Bar Council chair Chantal-Aimee Doerries QC told the BBC she would have expected the Lord Chancellor to make a clearer statement on the “unprecedented” attack which “undermines the rule of law in this country”.

Other lawyers went further, albeit under the cloak of pseudonyms…

The day ended, slightly surreally, with the crime writer son of the late top judge and constitutional law guru Lord Bingham revealing on his blog that his dad would have “used the word ‘fuck’ quite a lot more” in relation to Truss’s handling of the situation.

Things settled down on Sunday as the potential seriousness of the rift between the judiciary and the government perhaps gave lawyers cause to reflect.

One of the calmer heads throughout the weekend has been legal commentator and honorary QC Joshua Rozenberg, who noted on Facebook that while he believed the Brexit judges had reached the right decision, he had previously “thought the claimants might not win because the judges might be wary of attracting opprobrium, fearing the damage it would cause to public confidence in the judiciary”.

Rozenberg added:

I also think it’s tremendously important for the judges to maintain public confidence. If that goes we’re all lost.

Doubtless aware of this danger, Theresa May entered the debate on Sunday evening to back the judiciary (and the tabloids), commenting in a statement:

I believe in and value the independence of our judiciary. I also value the freedom of our press. I think these both underpin our democracy and they are important. Of course the judges will look at the legal arguments. We think we have strong legal arguments and we will be taking those arguments to the Supreme Court.

19 Comments

Interloper

Absolutely pathetic. The woman is grossly unfit for office (an almost total dereliction of her duty under s3 CRA 2005). Maybe she can be shuffled to Secretary of State for Dairy Trade (this current administration seems to like inventing new Cabinet posts after all) – since that’s obviously something she is capable of getting passionate about ?! 😐

“Liz Truss ? THAT’S a disgrace”

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Anonymous

Surely this is evidence that the Lord Chancellor should be a lawyer?
It’s difficult to think that anyone who had practised law would not condemn the attacks on the Judges.

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Anonymous

I “practise law” (difficult to imagine *you* do given that phraseology) and I think a free press is far more important than judges feeling warm and fuzzy at night no matter what they decide.

Honestly, the Daily Mail publishing garbage is hardly news. And judges are not immune from criticism – nor should they be. The “rule of law” (which you presumably know is a famously ill-defined, nebulous idea in all but its most uncontroversial aspects) is not at risk here.

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Anonymous

Keep practising law, and in a few years you might have got the hang of it!

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Anonymous

I was at the Bar Council meeting, and everyone was fuming. Liz Truss’ pathetic response in no way addressed the issues we, and everyone else, were concerned about.
She has permanently lost any credibility with the legal profession, and is likely to be remembered as worse than Chris Grayling. (Quite an achievement in its way!)

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JJ

So the tabloids attacked the High Court judges. Boo boo. Twitter is populated by dumb lefties with too much time on their hands – see reaction after General Election… “but, but, everyone on Twitter hates the Tories and we had the hashtag #CameronMustGo”

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Interloper

Nice to see that you think it’s quite alright that the gutter press can incite mob rule and encourage a path towards dictatorship.. Also that the government should silently endorse this idea..

Rule of law a bit outmoded for you is it ? I mean it’s worked fairly well for a while but what the hell, time for a change eh.. Time to retrieve Uncle Farhquart’s blackshirt from the back of the wardrobe and take it down the dry cleaner’s….

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JJ

Nice strawman there.

My point is – who really gives a monkeys what Liz Truss says or does? People on this site look down and sneer at ordinary folk as idiots whose opinions are manipulated by Rupert Murdoch and the tabloids, and in this case think judges are all bent (as someone who lives outside the M25, no they don’t).

This ‘where is Liz Truss’ rubbish is just a political move by Remainers intended to thwart Brexit. The mob aren’t coming. It’s ok. Don’t be scared.

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Interloper

Oh, thanks so much for the reassurance. You see I’ve been cowering in the attic all weekend with just my back copies of Forbes and Country Life for company..

Maybe not make facile assumptions about me eh pal ? Seeing as you know nothing about me…

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JJ

You’re weird.

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Anonymous

“The gutter press can incite mob rule and encourage a path towards dictatorship.”

Come on, dude. First of all, mob rule and dictatorship are compete opposite (mob rule being defined as an anarchic lack of control by any one entity, and dictatorship being defined as strong, centralised control by one person or small group). And secondly, it’s encouraging neither. The press, as awful as it can be, should be free to criticise judicial decisions.

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Interloper

That was somewhat careless of me. What I meant was “incite the mob and…”. Hey, it was early and I was 3 hours since my last coffee.

The press should be free to criticise judicial decisions, absolutely. Should they really be free to make vicious personal attacks on individual members of the judiciary in such an inflammatory fashion though ? Should they be free to undermine pillars of our constitution so flagrantly also, purely for the sake of serving their own highly dubious agenda ?

Hmm….

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Anonymous

Interloper, there are some assertions inherent in your caveat to “The press should be free to criticise judicial decisions, absolutely.”

Vicious personal attacks, perhaps, but even this is putting it a bit highly – bigoted and insensitive headline as part of unashamedly partisan tabloid reporting might be more accurate.

Undermining pillars of our constitution? I don’t really think anything has been undermined – critical as the papers may have been, they do not actually suggest the courts should be done away with, or that the judiciary is not the proper arbiter of legal questions.

Most of all, though, criticising the papers’ “highly dubious agenda” seems to be doubling back on your claimed acceptance of a free press. The whole point of the press being “free” is that the agenda of an individual publication is for the organisers of that publication to decide. In this case, the agenda is most likely profit, which is inextricably linked to populist appeal. Delivering a message which has populist appeal is hardly a dubious agenda for a tabloid publication.

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Interloper

Fair points and fair play.

Speaking personally, I just thought emblazoning “Enemies of The People” across the 3 justices crossed a line.

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Anonymous

The tabloid press and Leave.EU have both openly asserted that the courts should bow to political and public pressure instead of maintain their duty to uphold the law. How is that not undermining our constitution?

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Gladiatrix

Yes, the Daily Mail’s headline was excessive and its reference to the sexuality of one of the judges indefensible.
However, there is an argument to be made that the decision the judges made was not only legally incorrect (see previous threads on this point) but also procedurally incorrect. The High Court could have spared itself such opprobrium if it had simply taken a hard line about timely service. All the information that Miller/Dos Santos and their lawyers needed to be seised was publicly available the day the Referendum Bill received Royal Assent (i.e. no provision made or published to consult Parliament); the outcome of the referendum was always 50:50 and thus foreseeable. It seems to me that the judges could have pointed this out at the first hearing and asked the Attorney-General and James Eadie QC if they wanted to make an application to strike out the plaintiffs’ action on the grounds of being irretrievably out of time.
Liz Truss’ statement left something to be desired but that is arguably the fault of her civil servants. Added to which she was almost certainly advised to be very careful about what she said concerning an ongoing legal action to which the Government was a party.
Personally, I think the Bar Council needs to calm down and think a little more carefully before issuing a statement that was itself insulting to the Lord Chancellor, and which will have made them no friends at the MoJ.

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Anonymous

Hear hear, it is time people realised that lawyers as a group are not a political faction and we aren’t all cheerleaders for judicial activism. An attack by a tabloid paper on three lawyers does not mean our professional bodies should be intervening in what is clearly a very politically-charged arena.

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Female lawyer

Completely pathetic response from Truss. Corbyn has also been inexcusably silent – presumably because he doesn’t want to risk seeking to endorse the power of parliament over a popular vote lest he seem to undermine his own mandate, which comes from “grass roots supporters” and not MPs.

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chaussure led qui brule

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