Holding the Line Against Tyranny and Anarchy (Constitution Committee Report)

Lord Burnett of Maldon Excerpts

Thursday 9th July 2026 Lords Chamber

[Lord Burnett of Maldon (CB)]

I declare an interest as a serving member of the supplementary panel of the Supreme Court of the United Kingdom.

The report of the Constitution Committee, to which I contributed as a member, is a timely reminder of the importance of the rule of law as a vital constitutional safeguard. It is something that is largely taken for granted, but that it has been the subject of so much discussion in recent years is itself a sign of growing concern about its vulnerability. I congratulate our chairman, the noble Lord, Lord Strathclyde, on his skilful navigation through a subject that is apt to be diverted into academic byways and alleyways by focusing on the practical. In the few minutes available, I will touch briefly on two subjects: the independence of the judiciary, to which there has already been reference, and a discrete aspect of access to justice.

Judicial independence is central to the rule of law. It is reflected in the judicial oath to

“do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”.

Judicial independence enables judges to administer justice impartially and to treat equally those who appear before them. Equality before the law is a cardinal principle. Our report noted the importance of judicial independence—independence from the Executive and Parliament, of course, but also from all who might seek to put pressure on courts, not just politicians. That includes the press, large corporations, trade unions, activists and campaigners. Judges are required to resist all such pressure.

As we have heard, judicial independence is undermined when judges are attacked personally for a decision or their integrity is impugned. An expression of disagreement with the outcome of a case is entirely unobjectionable, but the growth of personal vilification—in which, regrettably, from time to time politicians have joined—crosses the line into a direct assault on the independence of the judiciary. Examples are multiplying. Even this week, a High Court judge was accused by disappointed litigants of a “complete and obvious whitewash”. Judges speak through their judgments and cannot answer back. That is why the Constitutional Reform Act imposes duties on the Lord Chancellor to defend the independence of the judiciary.

The committee recognised that:

“A culture of hostility towards the judiciary has been allowed to develop in recent years because of inappropriate, and often inaccurate, public criticism by politicians”,


and others, with

“inadequate defence from government”.

We distinguish in the report between discussion and debate about judgments and personal attacks on judges or the judiciary as a whole. As the noble Lord, Lord Strathclyde, has noted, such attacks should stop. Importantly, we added that Ministers, particularly the Lord Chancellor, must speak out in defence of the judiciary when it comes under attack. It needed saying, and I fear that obligation will become more onerous as time goes by.

The very existence of a functioning courts and tribunal system, with an independent judiciary, means that most disputes are sorted out before lawyers are involved and before proceedings are threatened or issued, and even when issued, many are resolved without a final determination. But cases which need final resolution by the courts must be capable of being heard in a timely fashion. Timeliness, at least in my opinion, is more important than a fixation on outstanding case numbers.

Now is not the time to talk about the difficulties in the criminal courts. We may yet get an opportunity to do so—or maybe we will not. My views are well known and do not align with the centre of gravity of legal opinion, but my short point is a general one. When Parliament legislates, with the result that new rights and obligations are created, government must ensure that the relevant courts and tribunals are ready to deal with the increased caseload. The late Lord Etherton raised this issue powerfully with respect to the significant changes found in the recent renters’ rights legislation, both as passed and as originally proposed by the last Government. Similar points have been made regarding the employment rights legislation. It is doubtful whether the courts and tribunals that will deal with the resulting disputes can do so in a timely fashion. Legislation and legislating are not the end of the story. If the rights created cannot be readily and quickly enforced, they may turn out to be hollow.