In para 22 he observed: ‘From time to time cases arise concerning rumoured instances of lapses in accepted standards of public administration and other matters causing public concern which cannot be dealt with by ordinary civil or criminal processes but which require investigation in order to allay public anxiety.’
The critical feature is restoring public confidence and trust. Judges are still – mercifully – the most trusted members of our society. In terms of public perception, the most successful judge-led inquiries appear to have been conducted by those who were prepared to make clear findings and effect cogent criticism, who included a representative cross-section of people within the evaluation/decision-making process and who possessed the common touch. The least successful chairs delivered weighty and opaque tomes from a somewhat detached standpoint.
However, of late, we have seen the fair and robust retired Court of Appeal commercial judge Sir Martin Moore-Bick subjected to hectoring and media pronouncements that he lacked the confidence of the victims and families of the appalling Grenfell Tower disaster. So how have we arrived at a situation where judges are increasingly fair game for attack?
For better or worse, today’s ‘mood music’ is increasingly derived from mass media, more so electronic media, and notably Twitter. Minimal, if any, reflection and – often maximum vitriol – is the substance of such material. In an era where misinformation, fake news and media smear campaigns are increasingly commonplace, it is even more important for our judiciary to be protected from such attacks. Who is to protect them?
One of the most radical and unexpected changes to the position of the judiciary took place when, on 12 June 2003, the Labour government abruptly announced the abolition of the centuries old role of the Lord Chancellor who had hitherto been described as ‘the lightning rod between the executive and the judiciary’. Lord Irvine of Lairg was removed from the post of Lord Chancellor, and replaced by Lord Falconer who immediately encountered heavy criticism and resistance for the lack of consultation with the judiciary, and somewhat hasty approach that was being adopted.
Whilst the title of Lord Chancellor has ultimately been retained, the office holder is no longer the head of the judiciary, nor have any of the past four office holders been qualified lawyers. Any individual ‘qualified by experience’ which ‘the Prime Minister considers relevant’ can hold the office (s 2 of the Constitutional Reform Act 2005 (CRA 2005)). Section 1 of the CRA 2005 states that the Lord Chancellor’s existing role in relation to the principle of the rule of law is not adversely affected by the Act. Section 3 seeks to provide a ‘guarantee of continued judicial independence’ which the Lord Chancellor must uphold. Lord Falconer was heavily criticised in 2006 for failing to protect the judiciary from attack by the then Home Secretary John Reid.
Since the CRA 2005 came into force, we have increasingly seen the unedifying need for senior retired judges and lawyers to fill the void left by silence on the part of successive Lord Chancellors to respond to attacks upon the judiciary.
There have been a few examples of individuals within government who have been prepared to stand up robustly and fearlessly to defend the judiciary and the rule of law; most notably Dominic Grieve QC MP, the former Attorney General.
However, the recent disgraceful attacks upon our judiciary in the context of the Art 50 Brexit cases – not confined to the tabloid press – have revealed a clear fault line with regard to the seemingly hollow words of ss 1-3 of the CRA 2005, and lamentable inaction from a succession of Lord Chancellors.
First and foremost it is incumbent upon politicians to remember and accept that the guardians of the rule of law are the judges. Politicians must show by example that they do indeed respect the judiciary, and that they will not cynically generate or deflect public pressure onto judges but will defend them.
The creation and fostering of an environment within which it was considered acceptable for judges at the end of 2016 to be identified by photos and described as ‘Enemies of the People’ (pictured, left) is the responsibility of the media. However, much blame lies with the politicians for creating a moral context within which respect and restraint has given way to vilification and ridicule.
At a time when many High Court judicial positions remain vacant and some of our best judges are contemplating leaving the bench before retirement age, it would be a foolish, reckless and short-sighted Executive which considered a weakened judiciary to be a positive development. Our judges and courts are respected throughout the world and those of us who believe in the rule of law and integrity of our system must not take it for granted. The challenge facing Sir Martin Moore-Bick is of critical importance: to ensure that (true to the Salmon Report), confidence in public sector housing safety standards is restored. Time will tell whether the challenge is met.
Contributor Khawar Qureshi QC is at Serle Court London and is a Deputy High Court judge