The Supreme Court President has appeared to criticise Theresa May’s Government for failing to defend judges in the face of an attack from the Press over Brexit.
Baroness Hale, who has a duty of impartiality, said Ministers should have responded to the Daily Mail’s branding in 2016 of High Court judges as “Enemies of the People” by defending the free press but also making clear the newspaper was “wrong”.
The front page story had criticised three judges’ decision to rule that Parliament had to approve the triggering of Article 50 to begin the two-year Brexit process.
Liz Truss, who as Lord Chancellor at the time had a statutory duty to defend the independence of the judiciary, made no comment for more than 24 hours before issuing a statement which was criticised for failing to condemn the attack on the judges.
Asked directly about Ms Truss’s response, Lady Hale replied “No comment”.
But in an interview with The Yorkshire Post, she said: “I think that the right response to that, not from us, the response from us is silence obviously.
“But the right response from those who are supposed to defend the independence of the judiciary is to say ‘we have a free press, you have every right to publish what you wish to publish - but it is my duty as defender of the independence of the judiciary to tell you that you’re wrong, they are not enemies of the people, they are serious, committed, dedicated judges who are doing their job’.”
Lady Hale, who eventually ruled in favour of Article 50 claimant Gina Miller along with the other 10 Supreme Court justices, also described the Mail’s “abuse” as concerning.
“Clearly it’s a matter of some concern that a newspaper which purports to support the rule of law is prepared to publish something like that which is so critical, even abusive, of judges who are doing their job,” she said.
“That’s a matter of some concern.
“But we were fortunate they didn’t take that line with us, perhaps they realised.”
The at-times inflammatory tone of the Brexit debate on both sides of the argument has since been the cause of consternation among observers.
And Lady Hale revealed the Supreme Court judges were conscious of the sensitive nature of the case and accompanying protests in making their decisions.
She said: “Yes, we were (conscious of what was going on), if only because of the extraordinary arrangements that the court had to make to deal with the great demand from both the media and the public for seats in the courtroom.
“We obviously had overflow in the other courtrooms, had to manage who sat where in the courtroom, so we were aware of that in this room.
“But I don’t think it had any effect at all on our consideration of the case.
“People who watched, and there were remarkable numbers of people who did watch our proceedings the whole way through would have realised we were not debating Brexit, we were debating the constitutional powers of the Government and Parliament and the relationship between them, something that hadn’t really been debated in the same way since the 17th Century.
“It was serious legal argument going on, and I think people realised that, and that was a good thing.”