Lawyers, Judges and the Rule of Law
On Wednesday 3 October, Lord David Neuberger delivered The Perse’s Michaelmas Term Community Lecture, in partnership with The Cambridge Building Society.
After reading chemistry at Oxford and spending three years as an investment banker, David Neuberger was called to the Bar in 1975, practising largely in property law. Since then, he has had a long and varied career: taking silk in 1987, being appointed as a High Court Judge in 1996 and a Lord Justice of Appeal in 2004. In 2007 he was promoted to be a Law Lord and became a peer. He was appointed Master of the Rolls in 2009 and became the President of the United Kingdom Supreme Court in 2012, a position from which he retired in 2017.
Lord Neuberger opened his lecture by explaining the meaning of the rule of law. The world is becoming more unstable but, for all its faults, our country has survived without revolution since 1688, something which Lord Neuberger attributes to both democracy and the rule of law.
The rule of law is a principle of the UK constitution that means politicians govern within their powers and that the law is clear, accessible, respected by the people and are given effect properly. For the rule of law to function, there must be a constitutional structure, laws, judges and lawyers.
The United Kingdom (along with New Zealand and Israel) is unusual in that it has no codified constitutional document. Whilst many people will point to the Magna Carta, which was sealed in 1215, as an example of the UK constitution, Lord Neuberger points out that 58 of its 61 clauses have since been repealed by Parliament.
The United Kingdom instead relies on the constitutional conventions of Parliamentary supremacy and judicial independence. In Lord Neuberger’s opinion, an uncodified constitution can be advantageous as it makes it easier and quicker to change, but it also gives judges less power as they are not required to interpret the constitution as they are in the United States.
The conventional view is that there are three branches of government: the legislature, who make laws; the executive, who carry out the laws; and the judiciary, who administer and interpret the law. Lord Neuberger explained that although there are three distinct parts of government, there is a hierarchy between them, with the legislature (Parliament) at the top, followed by the judiciary (the courts) and finally the executive (the cabinet, civil servants, local government etc.). There are cases where the legislature has overridden the judiciary, for example in cases related to mesothelioma.
The role of the court is often to interpret the laws laid down by Parliament. Lord Neuberger suggested that this interpretation could be flexible to prevent the statute being applied unfairly, for example it is assumed that Parliament never intends to infringe people’s basic rights. The role of the court has changed over time – in the time of the Magna Carta most of the laws were made by judges, known as the common law. Over time, Parliament began to pass more statutes which now form the basis of much of our law. Despite this, there are still a lot of areas where the courts make law through precedent, for example in murder and manslaughter cases, contract law and personal injury cases.
Lord Neuberger then went on to speak about an increasingly important area of public law – the infringement of rights. In the 1960s, there were fewer than 200 public law cases per year, but by 2015 there were 15,000 cases. He attributed this increase to the introduction of the Human Rights Act 1998, which gave people rights they had assumed they already had by expanding on existing rights and formalising rights which did not exist in statute.
Even though statutes may give people rights, the rule of law does not exist if citizens don’t have access to the law. Lord Neuberger discussed the increasing complexity of society and the fact that people need lawyers to be able to find out what their rights are. He noted the great deficit of accessibility in this country since 1996, due to the shrinkage of legal aid provision and the introduction of tribunal fees. He spoke about the judgment of the Supreme Court in Unison  which ruled that fees of £1,000 to bring a case to an employment tribunal were unreasonable, noting that it showed a government which did not understand the need to give citizens access to justice.
Lord Neuberger explained the structure and hierarchy of the court system in the United Kingdom, from magistrates’ courts and High Courts to the Courts of Appeal. He noted that the structures were different in England and Wales, Scotland, and Northern Ireland, but that the United Kingdom Supreme Court was the supreme Court across all of the jurisdictions. The UKSC was established in 2009 and assumed the judicial function of the House of Lords, cementing the separation of powers.
The highest profile case Lord Neuberger sat on was probably Miller , which asked the question as whether Mrs May and the cabinet could serve a notice of the UK’s withdrawal from the EU under Article 50 TEU, or whether it needed to be passed by Parliament. The government argued that treaties could be both made and broken by the executive, but since the civil war it has only been Parliament that could make and unmake law. Serving a notice under Article 50 would change the law, making it a very important constitutional question.
As President of the UKSC at the time, Lord Neuberger had the choice of which justices should sit on the case. Unlike most supreme courts worldwide, not all of the UK justices sit at once – there are usually 5 on each case, meaning two cases can be heard at the same time. Whilst all judges are impartial and decide cases on their merits, some judges are more ready to interfere with the law and develop a social agenda than others, and so the choice of judges could load the Court to engineer a decision. Lord Neuberger decided that all 11 justices should sit on the Miller case, so that the decision could not later be disputed by saying the outcome would have been different if others sat on the case. Justice is not only served by having fair judges, but also to allow the public to see justice being done. As part of allowing the public to see justice being done, cameras are allowed in the UKSC, a move hugely welcomed by Lord Neuberger. Whilst, he admitted, many people would find listening to the cases about as interesting as watching paint dry, boring is good as it means that judgments are dispassionate and measured. In Miller, the Court ruled against the government with an 8-3 majority, but Lord Neuberger pointed out that the split was not on the principle of the issue. The dissenting judges argued that Parliament’s decision to enact the European Communities Act 1972 carried with it the permission for the executive to leave the EU, meaning further Parliamentary permission was not needed.
Lord Neuberger used the Miller case as an example in a discussion of the relationship between the courts and the press. In his view, the press is usually reasonable towards judges. Whilst he has been lambasted in the past, he did not feel the attention was unreasonable, though this was not the case with Miller. The infamous ‘Enemies of the People’ headline in the Daily Mail caused shock not only in the UK, but also with legal colleagues abroad. Before the case was heard by the UKSC, members of the court were attacked by the press, and were deemed by some to be inappropriate to hear the case. Lord Neuberger also condemned the press attacks on Gina Miller.
Lord Neuberger ended his lecture by discussing diversity within the justice system. On the day where a Supreme Court bench sat with a female majority for the first time (Lady Hale, Lady Black and Lady Arden), he acknowledged that progress was being made, though there is much still to be done.
The Perse holds termly Community Lectures, open to all in the community, whether or not they have a link to the School. Information about upcoming lectures can be found here.