Lord Neuberger: giving democracy a hammering

When a UK judge makes a speech about human rights, the UK press will gleefully report anything he says about pesky foreign judges in Strasbourg. So long as he stands up for UK judges sitting in London, the press will be onside. This is unfortunate because UK democracy is being reordered by values and ideas stemming from within the UK and which have now got little to do with judgements given by the European Court of Human Rights. The Strasbourg court has become a convenient whipping boy for British politicians and the press. Yet while the press reports the whipping, it ignores the far more significant impact that human rights are having on UK democracy.

The Strasbourg court is a much maligned and weakened institution. This became clear earlier this month with its decision to award no compensation and no costs to 10 UK prisoners who claimed that being banned from voting was a breach of their human rights. Since the Strasbourg court had previously held that prisoners’ disenfranchisement was a breach of human rights, this decision shows that, as the former Justice Secretary Jack Straw MP observed, ‘the Strasbourg court looked over the abyss and backed off’ in order to avoid ‘a whirlwind of opposition on a scale that could well have undermined its legitimacy’. In future, the rule of law from Strasbourg can be expected to yield to a parliament that speaks with a clear voice and which is led by a prime minister who would be ‘physically ill’ if a contentious Strasbourg law were enforced.

Speaking shortly before the Strasbourg court’s capitulation on prisoner votes, Lord Neuberger, president of the UK Supreme Court, made his own modest criticism of the ‘inconsistent decisions’ made by the ECHR over the years, noting that the UK judiciary should ‘be more ready not to follow Strasbourg chamber decisions’.

Because the Strasbourg court has overreached itself by making a number of politically controversial decisions in recent years, the UK’s judiciary is keen to distance itself from that tainted institution. The objective being to avoid what former UK home secretary Jack Straw described as the undermining of ‘basic human rights’. By urging UK courts to exercise a little more independence from Strasbourg, Lord Neuberger has sought to insulate domestic human-rights jurisprudence from the criticism that is attached to many Strasbourg decisions.

Lord Neuberger’s modest Eurosceptic tone was heeded by the UK press, which reported the speech with these headlines: ‘Judges “too ready” to follow Strasbourg rulings says Lord Neuberger’ (Daily Telegraph); ‘British courts “too ready” to follow European Court of Human Rights’ rules’ (the Guardian); ‘British courts should be “more ready” to ignore human-rights rulings made in Europe, says the UK’s top judge Lord Neuberger’ (Daily Mail); ‘Have confidence to overrule Strasbourg, says UK’s top judge’ (The Times). The articles written under these headlines took their cue from one paragraph out of Lord Neuberger’s 43-paragraph speech.

Yet, contrary to the way Lord Neuberger’s speech was reported in the UK, modest Euroscepticism was neither the main nor most significant point made by ‘the UK’s top judge’. Lord Neuberger used the speech to make clear his enthusiastic support of human-rights laws. He described parliament’s passing of the Human Rights Act in 1998 as the start of ‘the age of enlightenment’. Lord Neuberger’s justification for human-rights laws was far more newsworthy than his remarks on Strasbourg. The most significant part of his speech was this passage on human-rights laws:

‘Particularly in the light of their recent history, mainland European countries appreciate the need for checks and balances, and realise that undiluted democracy is risky. The tyranny of the majority is bad enough and, as the past century demonstrated, it can lead to far worse things. However, you only have to look at the history of Germany over the past 100 years to see how valuable it can be for judges to be given a substantial role, supported by the rule of law, in protecting individuals against the might of the modern state.’

As a lawyer who has spent decades finessing arguments to make them sound persuasive, Lord Neuberger knows that it is better to be against something implied to be bad (‘undiluted democracy’) than to be against something good (‘democracy’). He also knows that it is desirable to attack something framed as bad (‘the tyranny of the majority’) rather than to attack something good (‘democracy’). And it is felicitous to deploy phrases that are self-evidently good (‘checks and balances’) as cover for something different (judicial collaboration with parliament over the making of laws). It is also powerful to imply that your argument could somehow have hindered German aggression and Nazism.

Despite the skilful use of these lawyerly devices, the gravamen of Lord Neuberger’s argument is clear. Democracy, in the form of parliament being sovereign to determine the law free of legal collaboration, ‘is risky’. Enacting laws on the basis of majority support is a ‘tyranny of the majority’. Without constitutional judicial oversight of Parliament, 100 years of Germany history may be repeated. In order to avoid this appalling vista, democracy needs to be diluted: democracy needs to be overseen by the judiciary using human-rights laws to protect the people.

Lord Neuberger’s approach is best understood with the example he gives of the Supreme Court’s recent consideration of the Tony Nicklinson assisted-suicide case. He notes how parliament has used the criminal law to impose a blanket ban on assisted suicide with primary legislation, the Suicide Act 1961 (which has been considered, updated and retained by parliament on subsequent occasions). He then posed this interesting question: ‘The point is whether that [act of parliament] means that the law on the topic is purely for parliament or whether the courts can say that, even though there is a clear statutory prohibition [on assisted suicide]… the court can say to parliament that that is contrary to the [European Convention on Human Rights] as it applies in the UK.’ He answered the question in favour of judicial involvement by noting that in ‘our recent decision of Nicklinson, we unanimously held that the courts did have that power’. A power, that is, to tell parliament that its legislation on this contentious issue of public policy is contrary to human-rights laws.

For various reasons, the Supreme Court did not declare the assisted-suicide law to be contrary to human-rights laws but a significant factor was that, as Lord Neuberger put it, ‘the courts should hold off giving a declaration of incompatibility so that parliament could consider the issue with the benefit of our judgements’. The Supreme Court has warned parliament that unless the law is changed it may be moved to declare the blanket ban on assisted suicide to be contrary to human-rights laws.

What we have here is a form of democracy where judicial opinions on matters of public policy are given particular weight. Laws are not simply made in parliament by elected representatives, for they require MPs to consider the views of learned members of the judiciary. As one judge of Supreme Court, Lord Wilson, put it, there is now a ‘collaboration between the courts and the legislature’. Or, as Professor Roger Masterman put it, ‘at the heart of [human-rights laws] lies the attempted reconciliation of judicial and political power, or – put another way – of interpretive and legislative power’ (1).

The relationship between parliament and the judiciary is now opaque. The UK judiciary cannot declare a law to be unlawful but it can declare a law to be incompatible with a human right. In theory, parliament can disregard such a declaration as the courts cannot require parliament to change the offending law. But Lord Neuberger drew attention to the practical reality of this process by noting that ‘the power now given to judges in the UK by… the Human Rights Act is demonstrated by the fact that, with one exception, parliament has always acted on every such [declaration] and cured any incompatibility’. In theory, parliament retains its sovereignty, but in practice parliament exercises it after considering any judicial guidance that has been given.

In Lord Neuberger’s ‘age of enlightenment’, the judiciary’s powers have increased considerably. The constitutional relationship used to be that parliament made the law (save where parliament allowed the judiciary to develop the common law) and the judiciary interpreted it. This clear separation of responsibilities has broken down. Nowadays, the judiciary still interpret the law but they also have a ‘collaborative’ role in shaping it. Lord Neuberger noted that the Human Rights Act has effectively conferred ‘a law making function on the judiciary’.

Under the Human Rights Act, parliament’s powers are, in practice, diluted and the judiciary’s powers are strengthened. Democracy is degraded as the will of the majority is seen as risky. Lord Neuberger’s criticism of ‘undiluted democracy’ is effectively a criticism of the unfettered ability of parliament to make and change laws. This matters because parliament is an elected body. MPs derive their authority from the ballot box. An MP’s views are subject to public scrutiny and debate, with the electorate ultimately having the last word. MPs win or lose support on the basis of their political view of society.

The judiciary is not elected (and neither should it be). Judges derive their authority on the basis of their technical ability to understand and apply the law. Their judgements are formed after hearing submissions from lawyers about the law. Judges do not, at least not openly, form judgements on the basis of a political view of society.

The issue of assisted suicide highlights the key problem here. When MPs debate assisted suicide they make clear their moral and political standpoints, which means the public can engage with these arguments and ultimately vote the holder of a particular opinion in or out of parliament. Nine Supreme Court judges recently considered the issue of assisted suicide; they considered it with 16 learned members of the bar. Six months later they produced a judgement the length of a book. Few members of the public will read it. Their lordships were constrained to address the issue of assisted suicide within a legal framework rather than from a freely chosen moral and political framework. The judges who made this ‘law’ are beyond democratic accountability. In a democracy, issues of public policy, such as assisted suicide, should be decided by elected representatives who should be engaging with the public and not collaborating with the judiciary.

The judiciary did not initiate this process; parliament gave the judiciary its new powers by enacting the Human Rights Act 1998. But the process that parliament initiated is now acquiring a momentum of its own, and speeches like Lord Neuberger’s warrant a serious public debate. Framing the discussion on human-rights laws simply in terms of Euroscepticism will only avoid or confuse the debate. What happens in the Strasbourg court is far less important that what is happening in courts north of the English Channel.

Jon Holbrook is a barrister based in London. He is shortlisted in the Legal Journalism category by the Halsbury Legal Awards 2014. He is speaking on the panel Judge rule: is the law taking over politics? at the Battle of Ideas festival at the Barbican, London, on Saturday 18 October. Follow him on twitter: @JonHolb