Lord Neuberger to the executive: get your tanks off the judicial lawn – Richard A. Edwards

6 March 2013 by

Lord NeubergerIn a rare public intervention Lord Neuberger, President of the UK Supreme Court, has flagged three important issues that should be of concern to us all.

Firstly, Lord Neuberger has quite rightly criticised the cuts to the Legal Aid budget. Denying litigants a chance to go to court will create ‘frustration and a lack of confidence in the system’, or people will be tempted to ‘take the law into their own hands.’ Lord Neuberger observed that “as one of the three remaining articles of the Magna Carta (1297) says “to no man shall we deny justice”, nowadays “to no man and no woman shall we deny justice”, and we are at risk of going back on that.’

Indeed. In its jurisprudence on the matter the European Court of Human Rights observed that ‘in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.’ (Golder v UK [1975] ECHR 4451/70, para 34) And that access can be dependent on the availability of legal aid. While not every case requires legal aid ‘Article 6(1) ECHR may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.’ (Airey v Ireland [1979] ECHR 6289/73, para 26)

Secondly, Lord Neuberger is not enamoured of the proposals to water down human rights protections. It would be irresponsible to leave the ECHR and would in all likelihood involve some form of withdrawal from the UN or its treaty bodies. His Lordship rightly notes that there is a seamless web of international law other than the ECHR that protects human dignity (e.g, the UN Convention against Torture and the Universal Declaration on Human Rights). No doubt if the HRA was repealed these obligations would come to the aid of the increasingly Convention marinated common law in developing a strengthened doctrine of anxious scrutiny. Ministers would find themselves no further forth in deporting terror suspects. Interestingly, Lord Neuberger’s views were expressed before this weekend’s episode of ‘dog whistle politics’ by the Conservative party.

And thirdly, Lord Neuberger rounded on Theresa May’s now notoriously intemperate attack in the Sunday Mail affirming the constitutional convention that ministers should not single out individual judges for criticism or for that matter comment adversely on the work of the judiciary in general: ‘It’s bad for both of us and I don’t see what the benefit is.’ Such criticism is ‘inappropriate, unhelpful and wrong.’ Moreover, the separation of powers requires that the various branches of government maintain civil relations lest the constitution become unbalanced:

‘We have a very good system in this country of distributing power and balancing power between the legislature, Parliament and the executive, civil service, ministers and the judges. We each respect each other’s turf … Inevitably there’s going to be tensions, indeed if there weren’t tensions something would be wrong. If the judges always did things ministers liked then there would be understandable suspicion as to what was going on.’

Ministers unhappy with the outcome in a particular case can either appeal or, once the litigation is complete consider, asking Parliament to make prospective changes to the law. Quite so.

This post is by Richard A. Edwards, Associate Head of the Law Department and Principal Lecturer in Law at UWE, Bristol. It first appeared on the Euro Rights Blog and is reproduced here with permission and thanks.

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  1. Craig Nelson says:

    I notoced the Commonwealth Charter is due to be signed. Have a look at section II with reference to the UDHR and other relevant human rights instruments. For rthe UK human rights are for others.

    I merely observe that modern states do require a human rights mechanism which ‘scrapping the HRA’ and pulling out of the ECHR will effectively …. well, ‘scrap’. If something doesn’t replace it the British will be the only people in Europe without human rights review of laws.

    In such a set of circumstances we are tempting our own judiciary to (in extreme circumstances) render statutes of no effect. I can certainly see this happening in cases involving torture where the internationally sanctioned prohibition is very strong.

    To free ourselves from the prohobition of torture would involve reneging on a lot of treaties that we are signed up to (not just the ECHR) that would effectively render the UK a pariah state, certainly in European circles but elsewhere as well. We certainly wouldn’t be able to talk to other countries about their human rights record.

    1. James Lawson says:

      Commonwealth Charter! Nice point Craig. I missed that one.

      As for torture, we have found a very ‘British’ way around that. Art 2(1) UN Convention Against Torture and Other Inhuman or Degrading Treatment requires signatories to enact ‘legislative, administrative, judicial or other measures to prevent acts of torture’ with ‘no exceptions whatsoever’, including ‘superior orders’. The United Kingdom complied by providing imprisonment for life for torture by act or omission in the UK or elsewhere by public officials and those acting in an official capacity at section 134(1) Criminal Justice Act 1988. What it then did was to provide a ‘defence’ of ‘lawful authority, justification and excuse’ at subsection (2). It then waited a while and enacted section 7 Intelligence Services Act 1994 where the ‘lawful authority’ would be provided by a ministerial certificate to grant ‘immunity’ from criminal and civil liability for acts committed abroad in reliance on the certificate. We could, therefore, kill and torture overseas by executive fiat. Thus far, the government has refused to cooperate with the Parliamentary Joint Committee on Human Rights in providing details of the certificates it has issued under s7 and one can only speculate what the public reaction would have been had the Gibson inquiry had gone ahead!

      Another very ‘British’ way around the decision in ‘Chahal’ and Saadi v Italy preventing us from extraditing people we do not like abroad where there exists a real risk of torture, is to strip them of heir British Nationality on ‘national security grounds if the Home Secretary is satisfied that to do so is ‘conducive to the ‘public good’ and without the inconvenience of having to give reasons, using s40(2) British Nationality Act 1981 (as amended by s56(1) Immigration, Asylum and Nationality Act 2006). We can get around inconvenient appeal rights by removing their citizenship while they are actually abroad making any appeal a practical impossibility leaving them to the tender mercies of their country of origin or the American who may want to pick them up. Or, we can always issue our people with the required s7 certificate!

      The UN Convention Relating to the Status of Stateless Persons 1954 and the UN Convention on the Reduction of Statelessness 1961prevents us from stripping British Nationals of their citizenshIp leaving them stateless and confirmed by SIAC in 2010: Abu Hamza v Secretary of State for the Home Department Appeal No: SC/23/2003. But a way around that problem has been found using Sch 7 Terrorism Act 2000 the effect of which is to turn all those returning to the UK from abroad into unwilling intelligence agents of the state who facing lengthy prison sentences if they fail to answer questions to the satisfaction of a UK Border official or refuse to turn over their ‘happy snaps’. The creative use of this provision allows officials to wait until an ‘undesirable’ has taken his Holidays abroad. Arrange for the local police in his holiday destination to ‘pick him up and gently ‘question’ him in a manner which would invariably invoke s76 of PACE to exclude evidence if applied in the UK. The Record of interview then being forwarded to the UK authority who provide a list of ‘questions’ to be answered when the individual is deported to the UK and is picked up by the border agency instructed to give no indication of where or under what circumstances they are being asked, only to emphasise that a failure to answer fully and correctly will invoke the full consequences of the Act.

      Not, of course that you would find any of this stuff on David Anderson’s supine reports to the Government or any of the governments replies. Neither will you hear anything at all once the activities of the government are placed totally beyond scrutiny which appears likely given the ease at which the government have managed to convince enough gullible MPs to vote in favour of the appropriate provisions of the Justice and Security Bill.

      So, as for the Commonwealth Charter, it will be proffered for signature by those who do not place too much value on international agreements and signed by those who look to this country for example!

  2. James Lawson says:

    Her attack on the judiciary and her threat to withdraw from the European Convention by 2015 of course has nothing to do with attempting to bully the judiciary in advance of her appeal on Monday 11 March 2013 against SIACs judgment in Othman v Home Secretary [2012] UK/SIAC 15 which released Abu Qatada on bail, and that Qatada’s arrest on 7 March 2013 on her orders for alleged ‘breach’ of bail conditions in advance of that appeal are again, totally unconnected with ensuring that he is in custody when the Court of Appeal arrive (she hopes) at a judgment in her favour.

    Timing is everything in politics!

  3. David Gould says:

    Seems to me that the present government line up the most unlikely ideas so as to have plenty of choice of U turns in the future. To attack the basis of Human Rights Legislation in just one corner while still tied to other measures seem like the desperate in search of the impractical, whilst pretending to formulate sensible policy decisions that the press are likely to welcome. To exit the ERHR will not greatly concern the judiciary of this land as they have other complimentary measures to call upon. But undermining the Magna Carta of 1215 and opening up secret courts while attacking members of the bench is never a wise move by any government and may indeed herald its end.

  4. James Lawson says:

    Theresa May, like others before her will have left her post at the next election. I gave up listening to Home Secretaries and their vacuous ‘threats’ a long time ago. They tend to ‘talk a good fight’ until they discover that they have failed to intimidate the judiciary into giving effect to government policy, or wiser counsel prevails or their policies backfire and inflict political damage sending them back into political obscurity along with the likes of Michael Howard, David Blunkett and Jacqui Smith. Unless and until she places legislation before Parliament she really is not worth listening to. She has nothing to say and says it rather too loudly. Abu Qatada has walked all over her, her appeal options are limited and she does not like it one little bit. She can ‘lash out’ as much as she likes. No one is listening!

    1. Anne Palmer says:

      As we all know without doubt, we have three Major Political Parties that want to remain in the European Union-forever. There is absolutely no point in voting for any of those three when the vast majority of people want freedom from foreign Rule.. In Fact, we are going to use the General election in 2015 as the REFERENDUM we were promised yet never had, and only vote for those Political Parties or Oganisations that want out of the European Union.

      Were most certainly HAVE listened, but it is the elected Members of parliament that have not listened. Theresa May is very good at the job she has been given to do. Do not underestimate Her. Me, and many more like me, my sworn allegiance is to the British Crown and as once before, it has to remain in its place, for too many died in the past to ensure it always remain so for us-so many of us- to fail.

  5. The older I get, the more afraid I become. This land that so many have given their lives to preserve and protect, is fast becoming a jungle of impenetrable pettifogging rules and regulation, none of which are designed to make the lives of its people better. It seems that to those that have, even more shall be given. Money equals power, so Mr & Mrs Ordinary-folk-on-the-street might as well give up because they won’t get a look in or a crumb from the table of the rich.

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