According to the President of the Supreme Court, the judiciary not only has a right but an obligation “to speak out on matters concerning the rule of law.” In recent months, it is a duty from which Lord Neuberger has not shirked, and last night’s lecture to the Institute of Government was no exception. Its focus was the importance of legal aid, which Neuberger described through the prism of the UK’s constitutional set-up and the respective roles of the legislature, executive and judiciary within it.
This is not the first time that the UK’s most senior judge has intervened in the debate surrounding the Transforming Legal Aid consultation, which closed on 4 June. Back in March, he warned that proposals intended to save £350 million a year by 2015 could end up costing the Government more, with greater numbers of litigants appearing in court without legal assistance, and longer hearings.
Last night, Neuberger described the growth of judicial review since the 1960s, which he says “reflects the significant expansion of the power of the Executive, although it is also attributable to judges who grew up in the questioning 60’s and 70’s replacing those who came of age in the conventional respectful 40’s and 50’s.” But he points out that judicial review is as “essential for the maintenance of Parliamentary sovereignty” as it is to ensuring citizens are protected from administrative excess and that the Executive adheres to the law.
The expansion of judicial powers over policy questions is linked in part to individual exercises of that Parliamentary sovereignty, through the enactment of the European Communities Act 1972 and the Human Rights Act 1998. “And what Parliament gives, it can take away or cut down.” Until it does so, judges will necessarily continue to give effect to European human rights and EU law, as Parliament intends. Whilst there is a degree of “good degree of disquiet” surrounding human rights law, the issues are often portrayed “in an absurdly one-sided way, invoking caricature and misrepresentation,” Lord Neuberger said. That is a concern shared by the Commission on a Bill of Rights, which reported last December.
Lord Neuberger also summarised changes to the structure of the judiciary brought about by the Constitutional Reform Act 2005, and in particular the significant changes to the office of the Lord Chancellor.
So under the new system, the Judiciary has the advantages of greater institutional independence and a stronger, more influential minister, but the disadvantage of a minister who is less familiar with its workings and concerns, and who has concerns and a budget which extends to a very politically sensitive area.
He went on to explain the role of the Supreme Court Justices, who
emerged, after 133 years, as a chrysalis hidden in the House of Lords into the sunlight of their own building on the other side of Parliament Square
This open and transparent court – which receives many visitors, broadcasts live on Sky television and even tweets – could see changes to its jurisdiction in the coming years, with the referendum on Scottish independence due to take place next year. While many might assume that a more limited jurisdiction would result, Lord Neuberger predicts that a “No” vote could ultimately result in greater responsibility for the Supreme Court, as more devolution issues could emanate from a country with increased devolved powers.
The judge also used this address to announce his proposal that in any appeal involving Welsh devolution issues, “a judge who has specifically Welsh experience and knowledge” would be among those hearing it, “if possible”. This could mean drafting in Court of Appeal judges on an ad hoc basis. This is a development which reflects the need to command public respect and confidence in the Supreme Court whilst recognising what Lord Neuberger describes as “an insufficient body of Welsh law” to justify a seat on the Court reserved for a Welsh (in addition to a Scottish and a Northern Irish) Justice.
Duty of civilised governments
Introducing his comments on legal aid, Lord Neuberger said this:
The historic justification, and primary duty, of any civilised government is to ensure the defence of the realm from foreign threats and the rule of law at home – i.e. to ensure its citizens are free from both foreign and domestic threats… Securing the rule of law at home requires, amongst other things: a high quality and independent judiciary; an accessible and effective court system; and an accessible, high quality, independent legal profession.
He describes the fundamental public duty on the government, the legal profession and the judiciary to work together to maintain access to justice in the face of economic realities. Neuberger suggests that “more radical solutions may be required”, such as dispensing with disclosure, cross-examination and oral hearings, and focusing on obtaining decisions from judges in summary form. “We may well have something to learn from on-line dispute resolution on e-Bay and elsewhere”.
He issued two specific warnings to the Government. The first is to avoid a new legal aid regime with a costs structure that will drive out the best lawyers. This reflects the concern of many protesting solicitors and barristers who have warned Chris Grayling and the Coalition against beginning a race to the bottom and creating “advice deserts” in large geographical areas and in specific, critically important spheres of the law, such as immigration and welfare:
Good lawyers save money, because they are less likely (i) to waste time in and out of court, (ii) to be responsible for miscarriages of justice, and (iii) to engender appeals and retrials. It is also a mistake to structure legal aid costs so as to reward lawyers for doing long trials: it inevitably means that trials last longer and cost more, and lawyers should be rewarded for cases lasting less time, not more.
His second warning echoed the concerns he raised in March, and related to the “knock-on effect” that legal aid cuts will have upon the costs to a court system accommodating more litigants-in-person and poor lawyers. He suggests that the system and its judges will end up having to pick up the slack
Two legal professions
Lord Neuberger went on to deal with standards and diversity in the judiciary and legal profession. Without diversity in the profession from which judges are drawn, it is difficult to secure it in the judiciary. And without diversity among judges, maintaining the strong, independent, respected and responsible judiciary essential to securing the rule of law is rendered difficult.
Neuberger also pointed to “two legal professions… lawyers who serve rich individuals and companies, and lawyers who serve ordinary citizens.” Both are vital, but those who serve the ordinary man and woman on the street “are under intense pressure from legal aid cuts and, at least in some areas, from an overmanned profession.”
The Lord Chancellor may not welcome this intervention from the judiciary, but many will consider it to be an important and timely one that Lord Neuberger is not only entitled but obliged to make. The debate surrounding legal aid tends to divide its participants along political lines, but in reality it goes to the heart of an interest that all political factions agree must underpin a democratic society: upholding the rule of law. For that reason, Lord Neuberger may well feel duty-bound to voice his concerns, both as a lawyer and as a judge.
The Government is due to announce how it will reform legal aid this September.