In her speech, she said that judges must “face down” the media, which may or may not be reflecting general public opinion.
She commented that it is “perhaps fortunate” that most senior judges do not engage with social media or the tabloid press, because the media can react strongly and personally against those whom they perceive to be acting against its interests.
Judges can – and should – ignore or brush off personal taunts from journalists, Lady Hale said, pointing out that the rule of law may be put at risk if the media go too far.
She referred to the case of R (Miller) v Secretary of State for Exiting the European Union, which hung on the question of whether the British Government could rely on the royal prerogative to trigger the process of leaving the EU, or needed the sanction of an act of parliament.
The judgment was greeted with rage by the Daily Mail, which published pictures of the three presiding judges over the banner headline: ‘Enemies of the people: fury over out-of-touch judges who defy 17.4 million Brexit voters and could trigger constitutional crisis’.
The case reached the British Supreme Court where, for the first time in living memory, all 11 serving justices sat on the panel.
Lady Hale asked: “Was taking this unusual course simply a wise way of protecting the court from an accusation that the result might have been different had a different panel been selected?
“Or was that, too, succumbing to media pressure? At least, as Lord Justice Sales put it, the 11 of us offered ‘a more diffuse target’.”
Two of four alleged Supreme Court Europhiles dissented from the decision to uphold the Divisional Court by a majority of eight to three.
“The Daily Mail’s response to our decision was very clever. They published the same size pictures of the three dissenters under the banner headline: ‘Champions of the people’, Lady Hale said.
Lord Justice Sales subsequently described how he felt about the press coverage: “Over the next few days, I felt unusually exposed when moving round London on foot and on public transport. However, no one approached me.
“This allows me to be sanguine about the experience of being front-page news. My sense of anxiety abated. In fact, the sense of threat felt most real when I received a visit from two police officers of the anti-terrorism unit of the Metropolitan Police to conduct a security review at my home. Fortunately, they assured me that their review of online activity and social media did not indicate an especially heightened threat of physical attack.”
Lady Hale said in her address that the public and the media might not have appreciated that the basic principle being upheld had been established during the constitutional struggles of 17th century.
Ascendancy of parliament
Parliament and some judges had fought to establish the ascendancy of parliament and the rule of law over the powers of the executive – which, in those days, resided in the monarch.
“Those were the days when the judges really did have to display moral courage in standing up to the government,” Lady Hale commented.