Lord Sumption: ‘I think that during Boris Johnson’s prime ministership there was a contempt for Parliament, which was very unfortunate. He did feel that he had a personal mandate, which is not the constitutional doctrine.’

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Baroness Hale of Richmond: ‘We were all brought up to believe in the sovereignty of Parliament as the fundamental principle of our constitution, not in the sovereignty of the Prime Minister, not in the sovereignty of the government but in the sovereignty of Parliament.’

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Lord Thomas of Cwmgiedd: ‘Her period as Lord Chancellor [Liz Truss] showed the issues that were subsequently to arise when she had more senior posts, particularly that of Prime Minister, of someone who doesn’t listen, doesn’t take advice and doesn’t understand the constitution.’

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Lord Woolf: Gibb: ‘The last administration under Boris Johnson has been criticised for showing a flagrant disregard for the rule of law. Would you agree?’ Woolf: ‘I would.’ Gibb: ‘That’s damaging, isn’t it, for the justice system as an arm of the constitution?’ Woolf: ‘Yes.’

These are testing times for judges. Tensions always exist between the Judiciary and ministers. But recent government policies – whether on achieving Brexit or curbing illegal immigration – have brought those tensions to an unprecedented level. That view, at least, is one main consensus emerging from a series of video-podcast interviews I have conducted with the most senior former judges in the land. Differing in personality, temperament and background, they nonetheless agree that the last few years of more populist politics have seen a disregard for the rule of law and for Parliamentary process.

Lord Thomas of Cwmgiedd, former Lord Chief Justice, summed it up like this: ‘I think part of the problem with the balance of power between the Executive and the Judiciary is the balance of power between Parliament and the Executive. If Parliament had more power and was able more effectively to exercise it, there’d be less of a problem.’

Courts, he predicts, would have to tread carefully in future as there has been a shift ‘much more to legislation which gives enormous power to the government to make rules and regulations by secondary legislation rather than primary legislation.’ If, as he believes, the Parliamentary process is deficient – then the courts would be ‘under pressure to redress the balance.’

Who, then, are the men (and, still, occasionally women) who make those decisions? The series, ‘The Judges: Power, Politics and the People’, looks at the former judges who have held the highest posts of Lord Chief Justice of England or president of the Supreme Court, the posts at the apex of the justice system, and asks: what do they feel about their time in office, their key decisions and dealings with ministers?

Hosted by The University of Law, the series spans four decades, from Lord Mackay of Clashfern, who pre-dated the constitutional reforms that ended the Lord Chancellor’s role as head of the Judiciary, to Lord Burnett of Maldon, who stepped down as Lord Chief Justice last October – paving the way for the first woman in the post, Lady Carr. Lord Judge – who was scheduled to be our last recording – was forced to cancel through ill health shortly before his interview. He most sadly died, just days later.

The interviews all took place at chambers or in judges’ own flats or homes. They were all as relaxed and assured as seasoned politicians – the result of years of running hearings, delivering judgments or, latterly, having cameras in courts. Their responses have been candid and revealing: judges are freer to speak openly once out of office (although many are active in the House of Lords) and it was notably different to chat with them on a more informal basis, compared with a structured press interview under time constraints and driven by a news agenda.

Lord Phillips of Worth Matravers, who chaired the inquiry into BSE or mad cow disease from 1997-2000, admits that he came close to having a breakdown. It was ‘without hesitation’ the most stressful time in his career as a judge, he says. Asked if his family worried that he might be on the verge of a nervous breakdown he said: ‘I think that I probably was.’ He adds: ‘It was a period of my life when I was really stressed. I couldn’t sleep. I actually went to a hypnotist to try and see if he could hynoptise me to sleep at night, without any success. It was very, very stressful.’

Baroness Hale speaks about the ‘nerve-wracking’ day when she led the Supreme Court in ruling that Boris Johnson’s government had acted unlawfully. Hale, President of the Supreme Court (2017-20) says: ‘Everybody listened to the summary of the judgment, which I delivered in complete silence – apart from when I said: “This is the unanimous decision of us all.” And there was an audible gasp.’ She did not, she insists, have to cajole or persuade her fellow Justices to obtain a unanimous ruling.

She recounts how she deliberately chose what she would wear that day – ‘a demure black crepe dress’ – but that the spider brooch, which became her hallmark and earned her the nickname Spider Woman – was worn by chance. ‘It never occurred to me that there would be such a focus on the particular brooch I was wearing.’ If it had, she would have probably ‘chosen a dragonfly brooch’ instead’, she says.

Some of the strongest comments from the judges come over sentencing. There is universal criticism of short sentences – now to be abolished - and a consensus that too many offenders are jailed. Lord Neuberger of Abbotsbury, president of the UK Supreme Court (2012-17), condemns aspects of the present sentencing regime as ‘utterly unacceptable’; ‘savage’ and jail terms as ‘inappropriately high’.

He tells me that when he was a judge, he regarded jail conditions for some women prisoners as ‘inhuman’ and after visiting Holloway Prison decided: ‘I am not going to send a woman to prison.’ He does concede, however, that compared with some jails abroad, ‘we look pretty decent.’ Similarly Lord Woolf, former Lord Chief Justice (2000-05) says: ‘Undoubtedly I would say we lock up too many people for far too long. ‘One reason,’ he agrees, ‘is that too many offenders are jailed for minor offences’.

Lord Phillips, Lord Chief Justice (2005-08)and President of the Supreme Court (2009-12), is equally blunt. ‘A system which doesn’t [rehabilitate] and locks people up like animals in cages for 23 hours out of 24 is basically inhumane.’ He adds: ‘I think we lock people up for far too long.’

What next, then, for this delicate balance of power between the limbs of the constitution? If there has been a rough ride of late, the senior judicial figures believe we now have a more settled state. They see respect for the rule of law restored – until the next clash, that is. Injunctions over Rwandan flights, fresh appeals and the issue of the jurisdiction of the European Court of Human Rights could surface. Lord Thomas predicts the next ‘crunch point’ between judges and ministers will be on climate change. ‘…We will reach a position where the political wish not to constrain the consumption of energy or not to look after the environment properly, will run into collision with what the law is.’ It is likely, he believes, to be a much more contentious issue than the current problems that relate to immigration. 

© Patrick Cahill/University of Law

The Judges: Power, Politics and the People: Hosted by The University of Law, the video-podcast series features Frances Gibb’s interviews with the 10 most senior former judges in England and Wales of the last three decades. Full episodes can be viewed on www.youtube.com/@TheUniversityofLaw or listen on all podcast providers. As well as those mentioned in this article, Frances interviews Lady Butler-Sloss and Lords Sumption, Mackay, Burnett.