Justice in the age of insecurity

9 February 2011 by Adam Wagner

Two of the UK’s top judges have given fascinating speeches this week on justice in the age of insecurity. One by the head of the supreme court warns that budget cuts will imperil the independence of the judiciary. The other, by the head of the court of appeal, argues that despite not being able to tell the government what to do, UK courts can provide effective protection of fundamental rights.

The speeches offer fascinating and sometimes controversial perspectives on our odd but in many ways admirable constitutional system, as well as warnings that strained budgets and political meddling could do it damage.

The Supreme Court was set up in August 2010 to replace the house of lords committee which was formally the highest level of appeal in the UK justice system. The main aim of the reform, which some have said was unnecessary, was, in the words of Lord Falconer at the time, to achieve a “full and transparent separation between the judiciary and the legislature“.

But on its first anniversary, the court’s chief executive, whose salary is in fact paid by the government, warned that budget cuts could imperil that independence. At one point the court was even listed as a quango whose future was “still to be decided”. Meanwhile, the court’s judges have also expressed their concerns that its budget is set by the government, and the Economist amongst others has highlighted the serious consequences for justice which this could entail.

In light of the now imminent budget cuts, Lord Phillips has taken up the topic in a speech entitled Judicial Independence & Accountability: A View from the Supreme Court.

The speech ostensibly takes a wide view of judicial independence. Lord Phillips reviews the judicial appointments system, agreeing that the “controversial” veto of the Lord Chancellor – a government appointee – is “justified”.

But it is really about money. Phillips laments that the system initially proposed, where the court would be almost financially independent, was ultimately replaced by the system where the court has to beg or borrow from the overall justice budget. Although this was satisfactory in the court’s heady first year, the second year will be quite different:

In the course of negotiating these I received a letter from the Lord Chancellor indicating the scale of the economies that he expected the Supreme Court to make in terms that I can only describe as peremptory.

The current system, therefore, does not guarantee institutional independence:

We are, in reality, dependant each year upon what we can persuade the Ministry of Justice of England and Wales to give us by way of “contribution”. This is not a satisfactory situation for the Supreme Court of the United Kingdom. It is already leading to a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire.

Moreover, the Chief Executive of the court should, contrary to present arrangements, owe her primary loyalty to the head of the court, not the minister for justice.

Phillips also tackles Michael Howard’s comments that the power of judges has increased and ought to be diminished as they are unelected and unaccountable. Indeed, Phillips admits that over half of the Supreme Court’s cases now arise from judicial review of government decisions. But Howard is misunderstanding the point:

When we review administrative action we do not substitute our decisions for those of the executive. We check that the executive has acted in accordance with the law, as laid down by Parliament

So, in summary, the head of the supreme court thinks that court is imperfect but doing a good job to challenge whilst not overruling the government, and should be given a proper budget to continue doing so. Meanwhile, Justice Secretary Ken Clarke said this morning that the court should not be in such a “unique” position and Phillips’ comments were a “storm in a teacup“. Judging from these remarks, supreme court may have to wait longer for true independence.

By contrast, Lord Neuberger spoke about physical, as opposed to economic, insecurity, in Protecting human rights in an age of insecurity. His speech was more theoretical than political, and provides an interesting perspective on the perceived imperfections in the English justice system which in Neuberger’s eyes in fact perfect it.

He begins with presenting the classic battle between liberty and security, brought into focus by the recent debate over control orders. Neuberger invokes Karl Popper to argue that the dilemma is more apparent than real:

For there is no freedom if it is not secured by the state; and conversely, only a state which is controlled by free citizens can offer them any reasonable security at all.

Neuberger goes on to discuss the UK’s famously unwritten constitution, which empowers judges to tell the government what it has done wrong but does not allow them to strike down properly enacted laws (I recently pointed out the problems which relate to this).

The Human Rights Act, which has been “sometimes said” to enable courts to enter the “realm of policy”, has in Neuberger’s view done nothing of the sort. Rather,

the 1998 Act affirms parliamentary sovereignty… The 1998 Act enables the courts to subject primary legislation to rigorous rights-based scrutiny, but it does not permit the courts to strike down such legislation on such grounds.

Some would say this demonstrates the true weakness of courts to protect rights. Not Neuberger. In fact, and as he admits, paradoxically:

[the UK’s] wider constitutional traditions are based on a respect for, and commitment to, the rule of law, and they developed as part of the United Kingdom’s constitutional settlement. … They are traditions which were fought for (occasionally violently) and developed over many years and were formed in the crucible of injustice. And they are lived traditions. In this they are more powerful than any document, whether a constitution, a statute or a court order.

So the commitment to the rule of law is “not a formalistic commitment, but a full-blooded one“. It means that “the ultimate decision lies in the hands of the people, expressed through elections, not through unelected judges.” He concludes:

it is the hearts and minds of men and women which are the true protectors of human rights, and the common law underscores and represents a living embodiment of what is in the peoples’ hearts and minds.

One notable absence from Neuberger’s neat constitutional picture is the European Court of Human Rights, whose decisions the government has agreed to abide by. It surely follows from his argument that the similarly unelected and more distant judges in Strasbourg should not have powers which are denied their UK equivalents. Perhaps he feared entering the complex recent debate on this issue.

Philips’ and Neuberger’s speeches approach similar questions through the lenses of different kinds of insecurity. But both invoke the same principle: namely, a deep trust of the UK’s common law system, evolved over centuries into a system which encourages robust judicial independence whilst also privileging the decisions of elected officials over unelected judges.

Neuberger suggests courts embody a system of rights which exists in the hearts of the population. Phillips, however, makes the grittier point that these rights will be meaningless unless the highest judges are permitted to get on with their job without fear of losing the robes from their backs.

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