Theresa May’s government was last night accused of failing to defend the judiciary from pro-Brexit political attacks as the row over last week’s court judgment on EU withdrawal intensified.
An intervention by the Lord Chancellor Liz Truss failed to dampen the controversy raging over the High Court ruling made by three judges which has thrown May’s Brexit strategy into chaos.
The judgment, which said EU withdrawal could only take place with the approval of parliament, saw attacks made on the judges from senior Conservatives and Brexit-supporting newspapers.
The strength and nature of the attacks led to concerns that they were undermining the UK constitution by threatening the independence of the judiciary.
Truss, who as the Lord Chancellor has responsibility for the upholding the independence of the judiciary, had been under pressure to act to defuse the situation.
She finally broke her silence after the Bar Council, the professional body representing barristers, released a statement urging the Lord Chancellor to condemn the attacks on the judges and the judgment.
Truss released her own statement which supported the independence of the judiciary but fell short of condemning the attacks.
Last night shadow justice secretary Richard Burgon said it was “too little much too late” from Truss, and condemned her for “failing to adequately stand up to attacks on [the] judiciary”.
Communities Secretary Sajid Javid was the most senior Tory to attack the judges. Javid suggested their ruling flew in the face of democracy, describing it as an “unacceptable attempt to frustrate the will of the British people”.
Before the judgment the Prime Minister had believed ministerial power and the result of the June referendum was sufficient to trigger Article 50, the mechanism for EU withdrawal. The UK government intends to appeal to the Supreme Court in an attempt to overturn the ruling.
The judgment by Lord Thomas of Cwmgiedd, Sir Terence Etherton and Lord Justice Sales also provoked a major backlash in the Brexit-supporting media with the Daily Mail criticising the judges as “Enemies of the people”, while the Daily Express called the ruling a marker of “the day democracy died”.
The critical reaction saw other Tories call on the government to intervene. Bob Neill, the Tory chairman of the Justice Select Committee, said the attacks had “no place in a civilised land” adding that some MPs did not appear to understand that the judgment had “nothing to do with subverting the will of the people”.
The former Attorney General Dominic Grieve described the attacks on the judges as “chilling and outrageous”, adding: “there is something smacking of the fascist state about them”.
The pressure mounted on the Lord Chancellor when the Bar Council took the unusual step of wading into the row.
The Bar Council yesterday issued a statement saying it regretted “the lack of public statement by the Lord Chancellor condemning these attacks”.
The statement called on her to condemn them “as a matter of urgency” and added: “A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law.”
Having resisted calls to comment for at least 24 hours, Truss finally released a statement of her own. But it did not meet the Bar Council’s demand.
Truss said: “The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.
“In relation to the case heard in the High Court, the government has made it clear it will appeal to the Supreme Court. Legal process must be followed.”
Shadow justice secretary Richard Burgon said Truss’s statement was “too little much too late” and criticised her for “failing to adequately stand up to attacks on (the) judiciary”.
He said: “Pressure from the legal profession, professional bodies, politicians and the public has paid off in that Lord Chancellor Liz Truss has finally made at least some progress on this issue.
“But let’s be clear – all Liz Truss has done is recite the well-known principle of the independence of the judiciary. She has still failed to condemn these attacks on the British judiciary as being ‘Enemies of the People’.
“The last few days mean that much of the legal community now has no confidence in the Lord Chancellor’s ability to fulfil her statutory duty to protect the independence of the British judiciary.”
Lib Dem leader Tim Farron described it as “a weak statement from a weak cabinet minister”.
Chantal-Aimee Doerries QC, chairwoman of the Bar Council, emphasised that the judgment was not about the merits of leaving the EU, but rather the constitutional process of triggering Article 50.
She said: “It is the judiciary’s role to ensure the rule of law underpins our democratic system. Without it fulfilling this vital role, the people would have very limited scope to hold the government in power to account.
“Publicly criticising individual members of the judiciary over a particular judgment or suggesting that they are motivated by their individual views, political or otherwise, is wrong, and serves only to undermine their vital role in the administration of justice. It also does no favours to our global reputation.
“None of the parties suggested that the court did not have jurisdiction to decide the point at issue. They are simply doing their job – impartially ruling on a dispute between parties, one of whom happens to be the government in this instance.
“The right to appeal is there to challenge the court’s decision if a party feels they have grounds to do so.
“Whilst acknowledging that this question is one of potentially significant constitutional importance, the independent role of the court should be respected, particularly by those who disagree with the outcome,” said Doerries