The Lady Chief Justice, Baroness Carr, has told reporters that she is “deeply troubled” by a recent exchange between the Prime Minister and the Leader of the Opposition during Prime Minister’s Questions – and that she has written to the Lord Chancellor to complain. This is an extraordinary, and extraordinarily ill-advised, intervention in the political process, which the Prime Minister and the Leader of the Opposition should firmly rebuff.
There is no evidence that occasional ministerial criticism of judgments imperils judicial independence
The parliamentary exchange to which Baroness Carr took exception concerned a recent decision of the Upper Tribunal allowing a Palestinian family in Gaza, who had a relative living in the UK, to enter the country. The Upper Tribunal judge ruled that the Home Secretary had breached the Article 8 right to respect for family and private life by denying the family’s entry to the UK.
The Gaza judgment was widely reported and decried, with the Prime Minister agreeing with the Leader of Opposition that the judgment was mistaken and saying that the Home Secretary would bring forward a change in the law to close what he termed “a loophole”. Keir Starmer added, for good measure, that it was for Parliament and not the judges to make legislation.
It is this exchange that the Lady Chief Justice has now condemned, saying: “Both the question and the answer were unacceptable. It is for the government visibly to respect and protect the independence of judiciary where parties, including the government, disagree with their findings.”
Any disagreement, she went to say, should be expressed “through the appellate process. And of course, MPs, just like the governing body, also have a duty to respect the rule of law.”
This criticism of the Prime Minister and the Leader of the Opposition – and of the way in which Prime Minister’s Questions unfolded in the House of Commons – is entirely misconceived. Baroness Carr should have known better than to intervene in public in this way. Whatever their views on the recent judgment, MPs should not stand for being dressed down in this way.
The merits of the Upper Tribunal’s judgment were and are a matter of high public importance. The Leader of the Opposition was entitled to ask about the judgment in the House of Commons and the Prime Minister was entitled to answer in the way that he did. Indeed, Parliamentarians have a duty to attend closely to judgments, especially high-profile ones, and to ask how the Government intends to respond, not least because a change in the law may well be required.
The Prime Minister has not failed in his duty to respect and protect judicial independence. This point is so obvious that it should not even need stating. In saying that he disagreed with the judgment, and that the Government intends to change the law in response, the Prime Minister has in no way compromised the independence of the Upper Tribunal judge or any other judge.
There is no evidence that occasional ministerial criticism of judgments imperils judicial independence. Fortunately, our judges are made of sterner stuff – and any judge who feels unable to continue in his or her role because of ministerial criticism of this or that judgment is ill-equipped for judicial office. Secure tenure, protected remuneration, judicial immunity and so forth are, as Policy Exchange has argued, the key protections of judicial independence. Our country takes great care to provide these in anticipation of the tensions that inevitably arise from time to time between ministers and judges. It is wrong – and, indeed, it is to misunderstand the idea of and reason for judicial independence – to insist that on top of this our constitution must also prohibit ministerial criticism of judicial decisions.
It is true and important that MPs have a duty to respect the rule of law. But Baroness Carr is wholly wrong to imply that the Prime Minister and the Leader of the Opposition have breached this duty – have failed to respect the rule of law – by disagreeing in public with a judgment. They did not call for the judge’s head, threaten the judge’s security of tenure, or anything of the kind. The rule of law requires independent courts; it does not require Parliamentarians, or the public, to refrain from disagreeing with the decisions of the courts.
These are obvious points. They hold with particular force in relation to judgments applying human rights law, which often turn on the judge’s evaluation of what is or is not “proportionate” and about how best to balance a wide range of considerations, which judges have no particular competence to assess. It is perverse to weaponise the principle of the rule of law to require Parliamentarians to agree, or at least not publicly to disagree, with how judges understand human rights and their implications for how we are governed.
Whenever questions are raised about the power that judges exercise in our country, the standard response has been to say that Parliament is always free to change the law if it disagrees with how the judges have acted. The extent to which this response answers concerns about judicial power has always been open to question, but it is obviously impossible to maintain if Parliamentarians cannot openly debate what the judges have done.
In her ill-judged attack on the Parliamentary process, the Lady Chief Justice fails to make her case that the Prime Minister and the Leader of Opposition have acted improperly. But her intervention does illustrate the drawbacks of providing running commentary on political developments in a question and answer session with reporters. Parliamentarians should now unite in affirming Parliament’s freedom of debate and in rejecting Baroness Carr’s attempt to suppress justified criticism of the merits of a controversial judgment.
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