Law and Rights
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.
- Labour Party Conference ~ Speech By Sadiq Khan Mp (shadow Justice Secretary)
At the Labour Party Conference held in Manchester (20th - 24th September), the Shadow Justice Secretary delivered a short speech which may be read here. One clear difference emerged from the stance, at least to date, of the Conservative Party. ...
- Lord Neuberger ~ Recent Speeches
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Law and Rights
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.
- Lord Neuberger at the Legal Wales Conference 2014
The UK Constitutional Settlement and the Role of the UK Supreme Court
10 October 2014 - Lord Neuberger gives The Conkerton Lecture 2014, Liverpool Law Society
The Supreme Court and the Rule of Law
9 October 2014
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?
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.
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.
- Labour Party Conference ~ Speech By Sadiq Khan Mp (shadow Justice Secretary)
At the Labour Party Conference held in Manchester (20th - 24th September), the Shadow Justice Secretary delivered a short speech which may be read here. One clear difference emerged from the stance, at least to date, of the Conservative Party. ...
- Lord Neuberger ~ Recent Speeches
Supreme Court of VictoriaOur own Supreme Court is now in vacation until the next legal year commences in October. Lord Neuberger, the court's President, is busy in Australia and New Zealand delivering speeches. In a speech at the Supreme...
- Magna Carta - Is She Still Alive?
City of London copy of Magna CartaUpdated 18th June with additional links Magna Carta is among the most famous documents in the world. It was on 15th June 1215, at Runnymede near Windsor, that King John reluctantly acceded to certain demands made...
- The Legal Year Commences ~ Formalities
The 2012-13 Legal Year commenced today with the traditional Judges Service at Westminster Abbey followed by "the Lord Chancellor's breakfast" in Westminster Hall - see Ministry of Justice . The Ministry of Justice website informs us that - "The...
- Constitutional Tinkering .... Continues .........
The previous Labour government introduced some major constitutional reforms. These included devolution to Scotland, Wales and Northern Ireland and the Human Rights Act 1998. They set up a Department for Constitutional Affairs (DCA) - which...