In a thinly veiled attack on the calibre of recent lord chancellors, the head of the judiciary in England and Wales has lambasted the thinking behind attempts to make courts financially self sufficient. Lord Thomas of Cwmgiedd also urged the next incumbent, David Lidington MP, to be ready to act against the wishes of other members of the cabinet or the prime minister'.
Lord Thomas was speaking at the Palace of Westminster yesterday, four days before Lidington is due to be sworn in. He will be the fifth holder of the key constitutional post in five years and the fourth in a row to lack legal qualifications.
The address was an outspoken climax to a series of speeches on relations between the judiciary and other branches of the state. Thomas dealt in turn with breakdowns in understanding between the judiciary and parliament, the executive and the media. Lack of understanding with the executive, he said, is illustrated by 'the characterisation of the courts as being service providers akin to a utility like water supply, of litigants exercising their constitutional right of access to the courts to vindicate their rights, to being consumers who, like any other consumer, must pay for the service they receive.'
Attacking the 'user pays' principle underlying recent court fee increases, he said: 'What has been needed, and still is needed, is an understanding by all that the judicial branch is just that: a branch of state, and, crucially, the branch that with parliament secures the rule of law. As such it cannot be confused with, or referred to as, a provider of consumer services. Equally, there cannot but be a proper recognition that it should be funded properly by the state.'
Thomas also made his most direct attack yet on last November's 'Enemies of the people' headline in the Daily Mail, saying it amounted to abuse. 'Such abuse is not simply an attack on the judges who made the decision; judges have undertaken to decide cases without fear or favour and must not be subjected to improper pressure of this kind. Moreover, such abuse is corrosive of public confidence in the judiciary and the rule of law and hence the other branches of the state.'
On relations with parliament, he revealed the existence of a programme for MPs to visit the Royal Courts of Justice and local courts and tribunals. 'Greater familiarity breeds greater understanding, which cannot but help parliament carry out its constitutional role,' he said. He said that in 'one or two instances' MPs had written to judges on behalf of constituents who are involved in proceedings with 'a suggestion, no doubt inadvertent, that the letters should or could be taken account of by the judge dealing with the proceedings'. He added: 'I say inadvertent because I am sure that no member of parliament would deliberately seek to influence a judicial decision.'
Thomas' most withering, if anonymously directed, criticism was on recent holders of the post of lord chancellor. Noting that the 2005 Constitutional Reform Act uniquely imposed a unstatutory qualification on the role, he described the criteria as 'broad and ill-defined'. In any case, he suggested they had been overlooked in recent appointments. 'I do not think that it is right, given the need for working relations between the branches of the state... that a provision inserted into the 2005 Act should be treated as ineffective.'
He reminded the next incumbent of his duties set out in the oath of office. 'Difficult though it may be, these are responsibilities which parliament has required of the lord chancellor a solemn oath to perform. The duties are an essential part of the proper interdependence inherent in the operation of our constitution and an essential safeguard to the independence of the judiciary which is fundamental to the maintenance of the rule of law, our democracy and the prosperity and good order of our state.'