Less than four months into her role, the first lady chief justice has already shown more inclination to stand up to politicians than many of her male predecessors managed across their entire tenures.
In one fell swoop, in her first appearance before parliament’s justice committee, Dame Sue Carr challenged the government on two of the main political stories of the day – the Rwanda refugee scheme and the Post Office IT scandal.
Wearing a brooch in the manner of fellow judicial trailblazer Lady Hale – the first female president of the supreme court – Carr first stated that decisions on how judges were deployed were “exclusively a matter for the judiciary” after the government said it would move 150 judges to deal with migrant appeals under the new law, as it seeks to allay concerns from Conservative MPs about the bill.
Carr said that headlines related to the move drew “matters of judicial responsibility into the political arena” and that it was “important that people understand that clear division”.
At the same committee meeting, Carr rejected the notion that the judiciary had approved government legislation that would grant blanket exoneration to everyone convicted as a result of the Post Office Horizon IT scandal. Such a move would mean bypassing the court of appeal, the normal avenue for challenging convictions, and has already raised concerns about ministers encroaching on the independence of the judiciary.
Carr confirmed she had “two short conversations” with the justice secretary, Alex Chalk, on the matter. She said: “I am very grateful for the opportunity to make it absolutely clear that any suggestion that the judiciary has given any proposed legislation the green light is simply not true.”
She said it was untrue that the judiciary would be unable to deal with the volume of outstanding cases arising from the scandal. More than 600 unsafe convictions have yet to be quashed.
In one sense, Carr was sticking to her job, given that her responsibilities include representing the views of the judges and “deciding the court areas in which individual judges sit and allocating work to the courts in England and Wales”.
But her robust stance was nevertheless unusual because her predecessors have often been at pains to avoid being seen to contradict – never mind criticise – the government of the day.
Even in a febrile atmosphere that made often made it seem like it was open season on judges (and “lefty lawyers”) for the government, her predecessor, Lord Burnett, limited himself to gentle exhortations to ministers to uphold the rule of law.
While Chalk is viewed as a more amenable justice secretary than some of his predecessors, Carr’s comments will have rattled cages among some in government who might have thought they had cowed the judiciary into submission.
Those who criticised judges in the past included Dominic Raab and Suella Braverman, when justice secretary and attorney general respectively.
A 2022 parliamentary inquiry by the all-party parliamentary group on democracy and the constitution concluded that ministers had acted improperly by questioning the legitimacy of judges when they do not get their own way, which had created an impression that supreme court decisions favourable to the government could have been a response to political pressure.
By not mincing her words on the Rwanda refugee scheme and the Post Office mass exoneration plans, Carr has shown a commitment to protecting the independence of the judiciary against government interference. Given a 2020 survey which found that 94% of judges were “concerned” or “extremely concerned” about the government’s conduct towards the judiciary, many on the bench are likely to be quietly applauding.
