Judicial Independence

Lord Henley Excerpts

Wednesday 7th December 2016 Lords Chamber

[Lord Beith]

To ask Her Majesty’s Government what steps they are taking to promote public understanding of the rule of law and the independence of the judiciary.

[Lord Henley (Con)]

My Lords, the Government are committed to maintaining the independence of the judiciary and the rule of law. Both are vital to our future success. In particular, the Lord Chancellor is working with the judiciary and others across the justice system to encourage better public education on the role of the judiciary and how it operates. Greater understanding supports efforts to ensure a diverse and representative judiciary, helping to protect the vital role of the independent judiciary for the long term.

[Lord Beith (LD)]

My Lords, I thank the Minister for that answer. Does he agree that supporters and critics of Brexit ought to unite in insisting that Governments are not above the law, and that judges, however inconvenient and open to contest on appeal their judgments sometimes are, are an essential arbiter of what the law is until Parliament decides to change it? Ought we not to be proclaiming these principles from the rooftops, in the Cabinet Office, in the classroom and even in newspaper offices?

[Lord Henley]

My Lords, I thought we were, and I thought my noble and learned friend Lord Keen did so only last week. I thought my right honourable friend the Lord Chancellor did so very firmly in Questions in another place yesterday—I could repeat her answers to all the questions—and I will continue to do so myself.

[Lord Beecham (Lab)]

My Lords, when the right-wing press launched its unprecedented assault on the High Court judges following their judgment in the Brexit case, Members across your Lordships’ House were dismayed by the lukewarm reaction of the Prime Minister, the Lord Chancellor and the Attorney-General. Since then, the same newspapers have conducted a personalised assault on members of the Supreme Court, collectively and individually, eliciting a similarly feeble response. Why have the Government not defended the freedom and independence of the judiciary with the same much-admired vigour of the noble and learned Lord, Lord Keen, who, despite being involved in the case on behalf of the Government, gave forceful expression to the need to respect the function of the courts and individual judges in the execution of their duty?

[Lord Henley]

My noble and learned friend did exactly that, as have other colleagues throughout the Government. They have also stressed—this is important to remember—that we are not responsible for what appears in the press, and we are not the police of the press.

[Viscount Hailsham (Con)]

My Lords, should the higher judiciary’s integrity and independence come under renewed attack, will my noble friend encourage his senior ministerial colleagues and, in particular, the Lord Chancellor, to defend the judges with the robustness that their predecessors would have shown?

[Lord Henley]

My Lords, I can certainly remember one of my right honourable friend the Lord Chancellor’s predecessors and his robust defence of the judiciary. But I have to make it clear that she has made a robust defence of the judiciary, and all members of the Government will continue to do so.

[The Lord Bishop of Leeds]

My Lords, will the Minister define a little further what is meant by public education, as it seems that one of the most powerful shapers of world views is what people see in the headlines of newspapers and what they see in the media, not just what is taught to them rationally, for example in schools?

[Lord Henley]

My Lords, I agree with the right reverend Prelate; it is very important that we listen to what is in the press. But I cannot police what is in the press. All I was saying in my original Answer is that that is part of the educative process. What Ministers say is also important. That is why I repeated what my right honourable friend the Lord Chancellor said, and what my noble and learned friend Lord Keen said.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords—

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

Does the Minister agree that the real vice and mischief of misconceived attacks on the integrity and good faith of the judges is not the hurt that it causes the judges—judges are not there to be popular and they tend to develop pretty thick skins—but rather the fact that it undermines the public trust and confidence in the administration of justice, and it is that which damages the rule of law?

[Lord Henley]

The noble and learned Lord is quite right, and right to emphasise that judges have in themselves very thick skins—the noble and learned Lord will know this. It is also right, as I made clear in my original Answer, that we are very keen to see greater understanding of the role of the judiciary and how it operates. The Government will continue to support that.

[Lord Goldsmith]

My Lords, it is not just understanding what the judges do that matters but the confidence to which the Minister himself referred. Does he agree that as we look forward, if we do, to a post-Brexit world we will need to have utter confidence in our legal system to reassure business and to attract foreign investors, and that anything that is done now to damage that long-term future by applauding short-term political name-calling is to be regretted?

[Lord Henley]

My Lords, I think that I can only repeat what my noble and learned friend said earlier; we have the utmost faith in the judiciary and will continue to do so.

[Lord Pearson of Rannoch]

My Lords, do the Government agree that it is an insult to the British people to suggest that they do not understand the rule of law? Is not the truth underlying this Question that those who do not like the referendum result are trying to use the law to overturn it?

[Lord Henley]

My Lords, the noble Lord is tempting me to comment on things that it would not be appropriate for me to comment on.

[Lord Lester of Herne Hill (LD)]

My Lords, is the Minister aware that I have tried twice to find out from the Government whether there is guidance as to what Ministers should do in performance of their Section 3 duty to uphold judicial independence? On the last occasion, the noble and learned Lord, Lord Keen of Elie, directed me to the Cabinet Manual, but it gives no guidance except a reference to judicial independence. Will the Minister ask his colleagues to give some written guidance to themselves about how they should comply with their Section 3 duty—and, in doing so, will he advise his colleagues to reject the idea in today’s Daily Mail that we should take the American practice of electing judges instead of the practice that, for example, the noble and learned Lord, Lord Mackay of Clashfern, very clearly instituted in the past?

[Lord Henley]

My Lords, I do not think that the noble Lord would expect me to comment on what appeared in the Daily Mail today, and I have no intention of doing so. But I shall note what he said about guidance to Ministers and pass it on to my right honourable friends.

[Lord Tebbit (Con)]

My Lords, it is important that we all reassert in absolute terms the integrity of the rule of law and the independence of the judiciary, but does my noble friend recollect that in the debates that ran before the abolition of capital punishment, one argument that was frequently put was that the mistakes made by the judiciary could not be rectified after an execution?

[Lord Henley]

My Lords, my memory goes back quite a long way but I do not actually remember all the debates in detail on the abolition of capital punishment.