Lord Neuberger on the rule of law and access to justice

Last night, Lord Neuberger, the President of the UK Supreme Court, gave the 2013 Tom Sargant Memorial Lecture. His text, available here, is worth reading in full, but here are some choice excerpts.

The rule of law, said Lord Neuberger, “can mean different things”:

At its most basic, the expression connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible: that means as available and as understandable as possible. Secondly, the laws must satisfy certain requirements; they must enforce law and order in an effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way. Thirdly, the laws must be enforceable: unless a right to due process in criminal proceedings, a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist …

The defence of the realm from abroad and maintaining the rule of law at
home are the two sole traditional duties of a government. More importantly, they are
fundamental. If we are not free from invasion, or the rule of law breaks down, then social
security, health, and education become valueless, or at any rate very severely devalued.

Lord Neuberger went on to consider the practical implementation of the rule of law, which, among other things, requires access to courts:  

The rule of law requires that any persons with a bona fide reasonable legal claim must have an effective means of having that claim considered, and, if it is justified, being satisfied, and that any persons facing a claim must have an effective means of defending themselves. And the rule of law also requires that, save to the extent that it would involve a denial of justice, the determination of any such claim is carried out in public. So citizens must have access to the courts to have their claims, and their defences, determined by judges in public according to the law …

Courts exist to resolve disputes, and also to vindicate rights – and to do so in public. Thus, criminal trials cannot be held behind closed doors. Even where the defendant pleads guilty in a criminal trial, the public has the right to know what happened. And where national or local government has overreached itself or treated someone unfairly, the public interest often requires it to be held to account in court in public.

Lord Neuberger said that access to justice

has a number of components. First, a competent and impartial judiciary; secondly, accessible courts; thirdly, properly administered courts; fourthly, a competent and honest legal profession; fifthly, an effective procedure for getting a case before the court; sixthly, an effective legal process; seventhly effective execution; eighthly, affordable justice.

Against that background, he considered the government’s recent proposals concerning judicial review:

The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government, or other public bodies. With the ever-increasing power of Government, which now commands almost half the country’s GDP, this function of calling the executive to account could not more important. I am not suggesting that we have a dysfunctional or ill-intentioned executive, but the more power that a government has, the more likely it is that there will be abuses and excesses which result in injustice to citizens, and the more important it is for the rule of law that such abuses and excesses can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly.

Lord Neugerber also considered recent changes to legal aid:

Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation. That is true whether one reduces the types of claim which qualify for legal aid or increases the stringency of the requirements of eligibility for legal aid. The recent changes have done both. If a person with a potential claim cannot get legal aid, there are two possible consequences. The first is that the claim is dropped: that is a rank denial of justice and a blot on the rule of law. The second is that the claim is pursued, in which case it will be pursued inefficiently, and will take up much more of the court staffs’ time and of the judge’s time in and out of court. So that it means greater costs for the court system, and delay for other litigants.

What should we make of these remarks? They are, of course, carefully expressed; it would be wrong to suggest that Lord Neuberger had engaged in intemperate or improper criticism of the government’s recent policies and proposals in relation to justice. Nevertheless, it is certainly significant that the President of the UK Supreme Court has spoken about these matters in these terms. Indeed, only last year, Lord Neuberger cautioned that judges should think carefully before speaking extra-judicially about matters of government policy or public controversy, for fear of compromising judicial independence and threatening the proper relationship, under the separation of powers, between the courts and the other two branches of government. We can be confident, therefore, that Lord Neuberger’s decision to weigh into the debate about access to justice would not have been made casually.

Lord Neuberger’s contribution is unlikely in itself to prompt a radical change of heart on the part of the government, but it will, quite properly, form part of the backdrop against which public debate in this area takes place. It is right that senior judges should have the freedom to speak up when government policy threatens fundamental rule-of-law requirements such as access to justice, and Lord Neuberger’s lecture is therefore to be welcomed. That does not mean that the government and Parliament should instantly cave into the judges’ views at the first hint of criticism: but it does reflect the fact that in our unwritten constitutional system, mutual respect must be exhibited. And that, in turn, means that it would be foolish for any government merely to dismiss the cogently-reasoned arguments of a very senior judge on a matter such as this.

Ten years ago, when the Labour Government was on the verge of attempting to prevent judicial review of immigration and asylum decisions, Lord Woolf, in a lecture which I attended at the University of Cambridge, warned that if politicians persisted in failing to respect the proper role of the courts, they would succeed only in making the case for a written constitution that would prevent the improper marginalization of the judicial branch. Sensibly, the Blair Government heeded Lord Woolf’s warning and stepped back from the brink. The Coalition Government’s policies constitute a less explicit, but nonetheless real and insidious, threat to access to justice. Current Ministers would do well to heed Lord Neuberger’s warning, just as their predecessors heeded Lord Woolf’s.

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