Tuesday, 14 October 2014

Lord Neuberger ~ Two interesting speeches

Update - Addendum 15th October -  

A "Constitutional Convention" to address further reform?

The President of the Supreme Court of the United Kingdom (Lord Neuberger) has delivered a couple of rather interesting speeches.  Please read them in full.

The Conkerton Lecture is essentially Lord Neuberger's look back at the first 5 years of the Supreme Court of the UK.  He looks at several of the cases the court has decided and appeared keen to put the record straight in some areas where there has perhaps been misrepresentation of the decisions of the court.  For example, speaking of Smith v Ministry of Defence [2013] UKSC 41, Lord Neuberger pointed out that the claimant's criticism about provision of equipment for the armed forces was aimed at civil servants in the Ministry and not at battlefield commanders. 

For Lord Neuberger, rights such as those embodied in the European Convention on Human Rights are fundamental to the rule of law, particularly in a time of ever-increasing government powers.  However, Lord Neuberger commented that reliance on the convention has rather hampered the development of the common law which was (and is) open to receive new ideas and concepts.

Here, by way of comment, it may be noted that the Human Rights Act 1998 opened up a new toolbox for lawyers to use and common law approaches  have perhaps been sidelined to some extent - (though it was necessary to use the Act to test human rights arguments).  The common law can be static unless and until an appropriate case arrives at a court with the authority to alter the law.  It is certainly not a dynamic mechanism for securing rights.

The Legal Wales Conference speech at Bangor University
has raised the question of whether the UK should adopt some form of written (formal) constitution.  It is not clear from the speech just what precise form of formal constitution Lord Neuberger would like to see but, at para. 15, he asked - "How do we ensure that democracy is combined with the rule of law."  He then notes that "an inherent feature of almost all democracies is a written constitution, by which [he meant] a document [containing] a coherent set of fundamental rights and principles and which cannot be altered by a simple majority of the legislature." [My emphasis]

That could possibly be achieved by a Bill of Rights with a built in procedure for its amendment rather than by adopting a detailed constitution that would have to address a myriad of other matters.

I do not propose to gloss in any way the speech of this eminent judge and I hope that I have not done so.  It is nevertheless interesting to note that the changes and developments to which Lord Neuberger refers (e.g. entry to the EU; adoption of the European Convention on Human Rights; devolution of power to Edinburgh, Cardiff and Belfast) have been achieved by way of ordinary legislation.  Flexibility has been retained by Parliament and any of these matters can be changed in the event that there is political support for changes.  For instance, following the Scottish Independence Referendum, there is clear support for further devolution of powers to the Scottish government.

In 2010, a peacetime coalition government was formed.  Legislation was not required to do this and this important political development was not hampered in any way by a formal constitution stating how the nation has to be governed.  The extent to which a formal constitution can either limit change or make it more difficult to achieve is not addressed in this speech.  Formal constitutions - (however one comes into being) - normally contain special procedures for amendment.

We are reminded that a select committee in Parliament is consulting on many of these questions and responses are invited by January 2015 - Major consultation by Parliament on "A new Magna Carta"   At para 18, Lord Neuberger said:  " ... UK is a country where Parliament has ultimate power with no restraining influence, no check or balance, other than the inherent sense of propriety and moderation, and respect for individual freedoms and minority rights, which have generally permeated our public life for the past centuries."

Perhaps the deeper question then is whether we, the electorate, are able to trust politicians to continue to exercise that "inherent sense of propriety and moderation."  If not, then perhaps the safer road is toward some method of underpinning our rights and principles.  One principle might be a clear statement that the government itself is subject to the rule of law so that vital COMMON LAW developments such as judicial review are given a protected status.

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Addendum 15th October

A "Constitutional Convention" to address further reform?

Constitutional reform  has been with us for some time.  Obvious examples are the establishment of the Supreme Court of the UK and devolution to Scotland, Wales and Northern Ireland.  Such reforms have been piecemeal rather than a coordinated package of reforms.  This has led to the idea of holding a "Constitutional Convention" with a view to preparing a new and formal constitution for the nation.  Writing in the Law Society Gazette 13th October, Roger Smith (Visiting Professor South Bank University) puts forward the view that the legal profession could lead such a process - Lawyers lead from the front.  It would undoubtedly be necessary for any such convention to have expert legal input but, at a very fundamental level, a constitution defines the system under which millions of people live and the vast majority of them are not lawyers.  Would there be a danger that a convention led by lawyers would end up with a legalistic constitution with little popular support? 

Even if a constitutional convention of some sort were to be thought desirable, there are very several potentially difficult issues that would need to be addressed .  Some of these are identified in a post by Robert Hazell (Professor of British Politics and Government) on the UK Constitutional Law blog - You want a constitutional convention?  This is what you need to think through first.

1 comment:

  1. Great speech on Constitutional Convention. Have gone through it twice.