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Questions and Answers at the Lord Neuberger Lecture on 3 December 2015

Separation of Powers and the Rule of Law

“The separation of powers and the rule of law are two very big topics in themselves. Let me start by saying that there are two basic inalienable principles which govern and underwrite our constitutional settlement, namely democracy and the rule of law. Neither is quite as simple as many people seem to believe.

“Pure democracy has never existed in the sense that no country has been run on the basis that every decision is taken by a vote of all citizens.

“Quite apart from this, a democratically elected government may prove to be so unacceptable that it results in its downfall. If a substantial body of people do not accept their country’s electoral system or the outcome which it produces, it will not work, however fair and representative it may appear to outsiders to be.

“The failure of some democratically elected governments demonstrates the truth of the connected point that democracy will not work if the democratically elected government does not comply with the rule of law - if, for instance, it proceeds without regard for basic fundamental rights or without respect for the interests of minorities.

“That is a practical point as well as a moral one: in the modern world at any rate, democracy cannot simply mean the tyranny of the majority, or oppression of any individual fundamental rights. A perfectly properly elected democratic government can persecute minorities and disregard human rights; we should never forget that Hitler and Mussolini came to power through democratic elections."

“James Madison, one of the founding fathers of the USA, expressed his concern over “the insecurity of rights under the popular form of government” both inside the legislature and outside it, and he identified the need to protect what he called “the rights of individuals, or of the minority”.  Accordingly, as James Madison explained, we need checks and balances."

“Those checks and balances involve what the French political philosopher, Montesquieu famously characterised as the separation of powers - a legislature (Parliament), an executive (the Civil Service, local authorities etc.) and the judiciary, all of which are separate from and independent of each other."

“Although Montesquieu said that he based his notion on the British system of government and we now purport to embrace it, it is in truth both relatively new and not completely implemented in the UK. Even now, for instance, the Prime Minister is the chief executive and Cabinet Ministers are senior members of the executive and yet they sit in the legislature and have a degree of control over it."

“But whatever overlap there may be at the top between the executive and the legislature, judicial independence remains an essential ingredient of modern democratic government."

“As long ago as 1783, when the US constitution was in its infancy, a very great English Lord Chief Justice, Lord Mansfield, said “The Judges are totally independent of the ministers that may happen to be, and of the King himself” , and such judicial independence is of course essential if we are to maintain the rule of law. A modern democratic society needs judges who are honest, fair, independent, committed and competent."

“Nowadays we refer to Madison’s “rights of individuals” as human rights or fundamental freedoms, which are a vital aspect of the rule of law. But the rule of law is not so simple either. It can exist in a narrow sense simply by having legislation which has been impeccably enacted procedurally, and which is impartially and effectively administered, but whose content is draconian or worse.

“To most right-thinking people that is rule by law, not rule of law, as the rule of law comprises much more than properly made laws properly administered: the contents of the laws must respect freedom of expression, freedom from torture and other fundamental freedoms and rights, such as access to justice and equality before the law.

“Such rights can too easily be taken for granted, but it is worth remembering that, along with the defence of the realm, the rule of law is one of the two basic and entrenched roles of government. If it does not provide those two most basic features, a government is not worthy of the name, and, indeed, without defence of the realm and the rule of law, the value of all the newer services provided by the state, such as welfare, health, and education, will be undermined.

The rule of law does not just mean having just laws and laws which protect fundamental rights: the laws must be enforceable and enforced. It’s no good giving people the right to freedom of speech or ownership of property if, when those rights are infringed, they don’t have the ability to get access to legal advice in connection with their rights, access to a court to vindicate their rights, and access to some sort of enforcement system to give effect to any judgment made by the court.

“Access to justice is thus an essential ingredient in the rule of law, and in a world where the law, like so much else, is becoming increasingly complex, access to a lawyer is of prime importance.

“An important element of the separation of powers is the notion that if judges speak in public they should generally keep off matters of policy, which are for politicians rather than for judges. The judiciary expects the politicians to keep their noses out of the judges’ areas of responsibility, and we have done pretty well in that connection.

“But the judges cannot expect politicians to keep out of the judicial territory if the judges start invading the politicians’ territory. Accordingly, when it comes to political issues we generally have to be very circumspect about expressing any views.

“That is nowhere more true than in relation to very politically sensitive issues like the UK’s position as a party to the European Convention on Human Rights and the associated issue of the Human Rights Act 1998, and the separate issue of the UK’s membership of the EU.

“Of course, the Government’s proposals for the reform of human rights law have yet to be published, as the Government is sensibly considering the issue carefully, and we do not know what the UK is going to do in relation to the EU so it would be pointless for a judge to express a view anyway.”

What is Lord Neuberger’s position on EU law i.e. the way the English judges manage to work with this source of law?

“The great majority of the judges who sit in these courts are from mainland European jurisdictions, and I think that judges on mainland Europe do not think entirely in the same way that we do in the UK.”

“First, almost all mainland European countries have a civilian law system rather than a common law system like ours. Not merely do they all have constitutions, but they all have a civil code and a criminal code.

“Almost all judges in the UK were practising lawyers before they became judges, and senior judges were almost all barristers in their previous careers, whereas mainland European judges are mostly career judges or former academics.”

“The differences continue when one looks at the difference in trial systems. Our trials involve much more evidence with mutual disclosure of documents, sometimes masses of documents and cross-examination of witnesses.

“There are often long cross-examinations and fairly full oral submissions, whereas hearings in mainland Europe courts are normally much shorter. While our procedures can be said to be more thorough, though, they are also more expensive.

“In the UK, we are much less ready to encourage appeals: you can normally only go to the court of appeal if you can identify a reasonable argument that the trial judge went wrong on a point of law, and you can only have a second appeal to the Supreme Court if you can identify a point of law of general public importance.

“In Italy, for example, you can appeal all the way to the Supreme Court on the issue of a parking ticket: it is your constitutional right.

“The great majority of the judges in Strasbourg and Luxembourg come, of course, from civilian jurisdictions: the exceptions are the UK, Ireland, Malta and Cyprus – all the island members, I think.”

“And when it comes to judgments, there is a different approach between UK courts and most European courts. The French Cour de Cassation – their Court of Appeal – gives judgments which are effectively unreasoned.

“However, as is normal in the civilian law system, the Luxembourg court has to give a single, unanimous judgment, which must be hard when, as there sometimes are, there are more than 20 judges sitting on a case.”

“Unlike in the Luxembourg court, Strasbourg judges can dissent, and they can agree for different reasons. When there are any, the dissenting and concurring judgments tend to be short, which I think some of us UK judges could learn from.

“The position is rather different with Strasbourg. UK judges are obliged to “have regard to” decisions of the Strasbourg court. So we do not always have to follow that court’s decisions.”

Will the proposed closure of 91 courts and tribunals ensure access to Justice?

“I know one of the subjects close to this questioner’s heart is the loss of access to justice, caused by cutbacks in legal aid and the resultant proliferation of Alternative Dispute Resolution (ADR). One possible solution is that the courts might supervise and control all forms of ADR, as they do arbitration already. Might the courts, by controlling all forms of ADR, minimise the loss of the ordinary man’s access to justice?

“It is sad that expenditure on the legal system, maintaining the rule of law, is not protected like expenditure on health is. It is more than regrettable that it is only in England and Wales which have a government policy that the civil law courts should be self-financing."

“I do have problems with the notion that a government service as fundamental as access to courts should be expected to be self-financing. While I cannot pretend to have carried out an exhaustive survey, I know of no country outside these islands where civil litigation is expected to pay for itself.”

“Clearly, litigants should be encouraged to settle, and I therefore agree with the questioner who suggests ADR could be usefully sponsored by the courts. ADR is effectively mediation, which could be characterised as gently banging heads together."

“I am delighted to say that the Civil Justice Council, which is responsible for developing ideas in this field under the chairmanship of the Master of the Rolls, has come up with the idea of online dispute resolution, which solves millions of disputes every year in relation to eBay.”

“There is no doubt that the court system would be much more efficient if there were fewer, but larger, court centres. Unfortunately that would inevitably mean that there would be problems with physical accessibility."

“However, longer hearings, and particularly trials, present more of a problem. I would have thought that it may well be possible to combine large hearing centres with judges going out to sit in village halls and the like to try individual cases or groups of cases.”

Will the constitutional position of the UK Supreme Court change in the future, for the stronger? 

“The role of the UK’s top court has changed significantly during the past twenty years. In particular it has become more of a constitutional court. The UK famously has no constitution (like Israel and New Zealand, but nowhere else)."

“Although we like to think we have constitutional principles and constitutional conventions, the UK courts have no established constitutional function – e.g. to strike down legislation because it is unconstitutional. However, with the advent of human rights, and to a lesser extent EU law, we have had to consider issues which could be said to be of a constitutional nature."

“Thus, although a constitutional court normally has power to strike down legislation which does not comply with the constitution, we do have power to declare that legislation does not comply with the European Convention on Human Rights, which almost always leads to Parliament changing the statute concerned."

“There is another reason for seeing the Supreme Court as having constitutional functions, namely the devolution of legislative power from the UK parliament in Westminster to assemblies in the capitals of Wales, Scotland and Northern Ireland.'

“Beyond these aspects, there is no immediate sign that the powers of the UK Supreme Court are going to change, or indeed that they have changed much to date. However, I was very interested to see that only yesterday, the Lord Chancellor, Michael Gove, indicated to a Parliamentary Committee that the Government might be addressing the question of whether the UK should have a formal written constitution, and, if so, whether there should be a separate constitutional court. It is no more than a possibility and even if it happens it will take time.”

“On the other hand, the UK has managed very well for centuries without a constitution, and it could be a mistake to try and graft on an alien organ on to our tried and trusted system.”

Lord Neuberger’s view of privacy in an online era

“This is a remarkably complex question, and I only scratched its surface when I discussed it in a lecture in Singapore earlier this year.

“It is now possible to communicate immediately with almost anybody across the globe. Thus, the internet, particularly bearing in mind its ‘almost unlimited search and memory capacity’ is an entirely new phenomenon in terms of scale.

“Both statute law, with its prior careful investigatory, consultative and democratic processes, and the common law, with its focus on gradual development on a case by case basis, are therefore facing unprecedented challenges from the Internet, which has been described by one of  Google’s founders as ‘the largest experiment in anarchy that we have ever had’.

“Most countries now have legislation which seeks to protect personal data. The EU, with its 28 member states, has the highest level of privacy rights and data protection, and the Council of Europe (which includes all EU members and a further 15 European countries) has its own data protection Convention.

“By contrast, the US has relatively weak and patchy legislation protecting data protection. And in this country we have protection from surveillance, hacking and the like in the rather out-dated Regulatory and Investigatory Powers Act 2000, which is in the process of being repealed and replaced by more modern legislation.

“The European experience suggests that there is a gap between the regulatory aims and the outcomes. The European Commission recognised more than ten years ago that the ‘data explosion inevitably raises the question whether legislation can cope with [the] challenges to privacy rights thrown up by the internet’.

“And if that is the position inside what is probably the most regulated part of the world, what hope, it might be asked, is there elsewhere? It is at times tempting to accept the pithy observation made by one of the founders of Sun-Microsystems, who said that the effect of the internet is that ‘You have zero privacy. Get over it’.

“In any event, the law should never seek to acknowledge or enforce rights which are in practice unenforceable. In what way and to what extent our attitude to privacy will be affected is a matter of speculation, but I strongly suspect that, as is the normal way of things, perplexing and uncertain as future developments may seem today, they will appear to have been obvious with wisdom of hindsight.”

Do the methods used by legal professionals and scientists overlap, as they strive to reach conclusions using data and evidence?

“I will have to run through this one as it was the topic of a whole hour’s lecture on its own recently."

“I contrasted the scientist’s approach with the lawyer’s approach to problems, pointing out similarities as well as differences."

“Science is remorselessly logical and eschews morals and even common sense, while law sometimes rejects logic, is comfortable with common sense, and is ultimately built on morals."

“A scientist can say, indeed should say, in answer to some problems “I don’t know”, whereas a judge can’t take that line."

“Scientists’ attitude to truth is very different from that of lawyers. Scientists should not accept the accuracy of any theory or idea until it is stress-tested to destruction. Judges in civil cases merely decide on the balance of probabilities – a much, much more lax standard."

“Judges in criminal cases decide on the basis of ‘beyond reasonable doubt’, which almost by definition involves using common sense, which, as I have said, is off the menu for scientists."

“Scientists search for any available evidence, whether it helps or hinders their theory; in court a judge is hidebound by the evidence which the parties choose to put before her."

“On the other hand, science and law and have much in common – unsurprisingly as they both involve human endeavour, trying to place order on chaos, in the one case on the natural world, and in the other case on human society."

“Human prejudices and beliefs will inevitably influence scientists and lawyers, and both often reason backwards after they have had a bright new idea rather than forwards from what is known."

“When I gave my lecture on this topic, I discussed what science can teach law (e.g. understanding how the mind works, how statistics work, how to assess forensic evidence), and what law can teach science (e.g. how the rule of law can ensure a framework within which biological research can be carried out, climate change should be approached, and IT issues, including privacy, should be addressed).”

Lord Neuberger’s view of Jonathan Sumption's important speech in Malaysia two years ago

“This was a highly intelligent, albeit veiled, attack on what are essentially political questions, to which there is no ‘right’ or ‘wrong’ answer, and that need to be determined by the legislature in a democracy, becoming legal questions to be determined by members of the judiciary."

“I would also add that there are a lot of questions which are not ‘political’ in nature to which there is no right or wrong answer. Indeed, there are many legal issues which fall into that category. A case will rarely get to the Supreme Court unless the issue it raises is difficult to resolve, and in many such cases, the right answer can properly be described as a matter of opinion.”

The Magna Carta 800 years on

“There have been lots of talks on Magna Carta this year, and some people may feel ‘Magna Carta’d out’. However, familiarity should not breed contempt.
 
“Yet, against all the odds, Magna Carta was magnificently reborn about a year after it had been apparently consigned to the dustbin of history. That was because King John did one of the few decent things he had ever done in his dishonest, inept, feckless life: he died. His death changed the political landscape, as it replaced the distrusted and hated King with his nine-year old son, Henry.

“Time does not permit me to follow its history thereafter, but I should end this talk by reminding you why it is seen as so important. It is all because of two short provisions, Clauses 39 and 40, two of the four of its provisions which are still part of our law.

“These clauses famously promise that no free man will be deprived of his freedom or property without ‘the lawful judgment of his peers or according to law’ and that justice will not be denied, delayed or sold to anyone.”

“Scholars can argue till the cows come home precisely what those two clauses meant in 1215, and it is fair to say that they have been given an exaggerated meaning from time to time on any view – such as being the basis for trial by jury and for the rule of no taxation without representation.

“The two clauses may well have provided the inspiration for such ideas: clauses 39 and 40 were concerned with justice, and much of the origin of the Barons’ discontent was John’s heavy taxation: indeed, the first parliament in England was set up under King John’s son exactly 50 years after Magna Carta.

“However, even taking the two clauses at face value today, they summarise very neatly the essence of the rule and its vital place in a modern democratic society.

And the rule of law, expressly or implicitly, has been central to all, or virtually all, the excellent questions which you have posed to me this evening.”