Lord Neuberger to the Executive – Get Your Tanks off the Judicial Lawn

Richard A. Edwards. ILHRU. UWE, Bristol.

In a rare public intervention Lord Neuberger, President of the UK Supreme Court, has flagged three important issues that should be of concern to us all.

Firstly, Lord Neuberger has quite rightly criticised the cuts to the Legal Aid budget. Denying litigants a chance to go to court will create ‘frustration and a lack of confidence in the system’, or people will be tempted to ‘take the law into their own hands.’ Lord Neuberger observed that “as one of the three remaining articles of the Magna Carta (1297) says “to no man shall we deny justice”, nowadays “to no man and no woman shall we deny justice”, and we are at risk of going back on that.’ Indeed.  In its jurisprudence on the matter the European Court of Human Rights observed that ‘in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.’ (Golder v UK [1975] ECHR 4451/70, para 34) And that access can be dependent on the availability of legal aid. While not every case requires legal aid ‘Article 6(1) ECHR may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.’ (Airey v Ireland [1979] ECHR 6289/73, para 26)

Secondly, Lord Neuberger is not enamoured of the proposals to water down human rights protections. It would be irresponsible to leave the ECHR and would in all likelihood involve some form of withdrawal from the UN or its treaty bodies. His Lordship rightly notes that there is a seamless web of international law other than the ECHR that protects human dignity (e.g, the UN Convention against Torture and the Universal Declaration on Human Rights). No doubt if the HRA was repealed these obligations would come to the aid of the increasingly Convention marinated common law in developing a strengthened doctrine of anxious scrutiny. Ministers would find themselves no further forth in deporting terror suspects. Interestingly, Lord Neuberger’s views were expressed before this weekend’s episode of ‘dog whistle politics‘ by the Conservative party. 

And thirdly, Lord Neuberger rounded on Theresa May’s now notoriously intemperate attack in the Sunday Mail affirming the constitutional convention that ministers should not single out individual judges for criticism or for that matter comment adversely on the work of the judiciary in general: ‘It’s bad for both of us and I don’t see what the benefit is.’ Such criticism is ‘inappropriate, unhelpful and wrong.’ Moreover, the separation of powers requires that the various branches of government maintain civil relations lest the constitution become unbalanced:

‘We have a very good system in this country of distributing power and balancing power between the legislature, Parliament and the executive, civil service, ministers and the judges. We each respect each other’s turf … Inevitably there’s going to be tensions, indeed if there weren’t tensions something would be wrong. If the judges always did things ministers liked then there would be understandable suspicion as to what was going on.’

Ministers unhappy with the outcome in a particular case can either appeal or, once the litigation is complete consider, asking Parliament to make prospective changes to the law. Quite so.

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