11:01, March 22 335 0 theguardian.com

2017-03-22 11:01:02
Lord chief justice castigates Liz Truss for failing to defend article 50 judges

The lord chief justice, Lord Thomas of Cwmgiedd, has launched a forthright attack on the justice secretary, Liz Truss, for her failure last year to defend judges who were branded “enemies of the people”.

The most senior judge in England and Wales also lambasted her department for putting out inaccurate information last weekend about extending a scheme for pre-recording testimony from rape victims.

Officials at the Ministry of Justice “misunderstood the whole thing completely,” Thomas said. He has now had to write to judges to “explain that what the ministry had said was wrong”.

Referring to the article 50 Brexit court case, he told the House of Lords constitution select committee Truss was “completely and utterly wrong” to say she could not criticise the media.

“There’s a difference between criticism and abuse,” Thomas said, “and I don’t think that’s understood.”

Last November, the Daily Mail ran the headline “Enemies of the people” when the high court, on which Thomas was sitting, found against the government, forcing ministers to obtain parliamentary backing before triggering Brexit.

The lord chief justice told peers: “The circuit judges were very concerned. They wrote to the lord chancellor because litigants in person were coming and saying ‘you’re an enemy of the people’.

“... I don’t think it is understood either how absolutely essential it is that we [the judges] are protected because we have to act as our oath requires us without fear or favour.

“It is the only time in the whole of my judicial career that I have had to ask for the police to give us a measure of advice and protection [for Gina Miller, the lead claimant in the Article 50 case] in relation to the emotions that were being stirred up.

“And I think that it is very wrong that judges should feel it. I have done a number of cases involving al-Qaida, I dealt with the airline bombers’ plot, some very, very serious cases. And I have never had that problem before.”

Thomas, who is due to step down in the autumn, after four years in office, acknowledged that he was not “mincing words”. He said he had been saving up his thoughts on judicial independence for a speech in parliament in June but comments by Truss last week – in which she urged judges to speak out about their work – and parliament’s passing of the European Union (Notification of Withdrawal) Act meant he was free to give his views now.

Thomas said: “I regret to have to criticise her as severely as I have, but to my mind she was completely and absolutely wrong. And I am very disappointed. I can understand how the pressures were on in November, but she has taken a position that is constitutionally, absolutely wrong.” It is was Truss’s duty, as lord chancellor, to defend the judges, Thomas said.

Truss said she supported freedom of the press and did not feel it was her role to tell newspapers what they should put on their front pages.

She told the same committee earlier this month: “I think it is dangerous for a government minister to say, ‘this is an acceptable headline and this isn’t an acceptable headline,’ because I am a huge believer in the independence of the judiciary. I am also a very strong believer in the free press.”

A Ministry of Justice spokesman said: “An independent judiciary is the cornerstone of the rule of law, and it is the duty of the lord chancellor to defend that independence.

“The lord chancellor takes that duty very seriously. She has been very clear that she supports the independence of the judiciary, but that she also believes in a free press, where newspapers are free to publish, within the law, their views.”

A No 10 source added: “On the number of times this issue has been raised, Liz Truss has been very clear that she supports the independence of the judiciary. We have also been very clear that she is not going to tell newspapers what to write.”

Extending the pre-recording of evidence from rape victims is intended to shield them from being freshly traumatised by their experience in court.

Last weekend, the MoJ announced that a pilot scheme which has been operating at Kingston-upon-Thames, Leeds and Liverpool crown court and mainly involving child victims would be extended to the whole country and all adult victims of sex crimes.

But Thomas said: “There was a complete failure to understand the impracticalities of any of this ... The Ministry of Justice is under-resourced. They do not have enough people to understand.”

The letter sent out by the lord chief justice to senior judges said that he was: “very keen that you understand the position and that the misleading impression provided in the press reports is corrected.”

Only the existing pilot programmes at Kingston, Leeds and Liverpool would be extended to include adult sex assault victims, Thomas said. They will have to be evaluated before they can be used in other courts, he added.

Liberal Democrat leader Tim Farron said Truss had “failed in her duty” and called on her to apologise to the House of Commons.