Given as the Conkerton Lecture 2014 for the , Liverpool Law Society.
Lord Neuberger was speaking about the role the Supreme Court plays in upholding the rule of law.
“5. This brave new world of change coupled with intense media coverage presents two obvious challenges to law and lawyers. First, it is an important feature of a sensible legal system that any reform is carefully considered and is based on long term or structural changes rather than temporary passing fads. This approach is difficult to maintain at a time when the pace of change is so fast, so that some changes to the law appear to be urgently needed, and that problem is reinforced by the 24/7 approach to news and current affairs, which increases the demand for speedy change. As usual, there is a balance to be struck between (i) responding to change so as to maintain the reputation and the coherence of our laws, and (ii) not being rushed into ill-considered and unnecessary new laws. Secondly, at a time when the pressure for change is so great, I think that it is particularly important that we distinguish between the essential ingredients of our constitution and way of life, which should not be changed, and the rest of our laws and conventions, which we should be more ready to change to reflect developments in society, technology and ethics.”
He continues reflecting about the Scottish Referendum’
“8. However, what I can say is that any negotiations and any outcome must take into account, indeed must accord full respect to, the two basic inalienable principles, which govern and underwrite our constitutional settlement, namely democracy and the rule of law.
Lord Neuberger then turns to the influence of Europe.
“10. In the past fifty years or so, there has been a significant perceived change, arising out of the UK’s involvement in post-Second World War European developments. The effect of our accession to the European Union in the 1970s is that UK judges now have to apply EU law, including decisions of the Luxembourg court – the EU court – even if that appears to conflict with statutes or common law. Secondly, the Human Rights Act 1998 has, famously, introduced the European Convention on Human Rights into UK law. This has given judges the duty to do their best to interpret statutes so that they comply with the Convention, and, if not possible, to declare statutes non-compliant with the Convention; it has also given the judges the duty to develop the common law so that it accords people their rights under the Convention.
11. These developments have a number of interesting features. First, given that we have a set of rules which governs our approach to law and protects individuals, it is almost as if we have a constitution. Secondly, in any civilized society, if you give people rights, they also must have the right to enforce them, and people have indeed sought to invoke Convention rights through the courts. Thirdly, this in turn has resulted in the courts developing a UK human rights jurisprudence. This is in general very beneficial. Of course, there can be arguments about some individual decisions, the role of the Strasbourg court, and similar topics, but rights such as those embodied in the Convention are fundamental to the rule of law, particularly in a time of ever increasing government powers. Fourthly, our common law has been reinvigorated by new thinking inspired by the Convention.”
[Edited for ease of reading and relevance]. The full speech is here.