Neuberger's cri de coeur

How does a sitting senior judge safely attack the government and his peers? Well how about using an erudite lecture on the history of notable cases – checking back through the text of Lord Neuberger’s address to an event to mark 150 years of court reporting by the Incorporated Council of Law Reporting at Lincoln’s Inn this week, I think that’s exactly what he did.

Strip away the mild-mannered delivery and the references to snails (and mice) in ginger beer bottles, and this was a liberal cri de coeur.

Running through the ‘top fifteen cases’ voted for by ICLR members, the president of the Supreme Court found details that delivered an unmistakably sharp reminder to government and fellow judges on the responsibility of the courts to be fearless and active in defenders of the rule of law and human rights – taking a confident interpretation of judicial review powers.

He had critical words for the judiciary’s pre-1960s attitude to judicial review, which was ‘rather deferential or even emasculated’. Recent government policy, of course, has sought to limit the scope of judicial review.

The ‘more structured “proportionality”,’ introduced by the UK Human Rights Act had been an ‘advantage’, Neuberger noted. Notably, his comments seemed to contrast with those of fellow Supreme Court judge Lord Sumption, who has in the past been openly critical of human rights law for allowing ‘judicial law-making’.

Referencing the ‘so-called war on terror’, Neuberger recalled with approval the court’s 2004 challenge to the ‘disproportionate and a discriminatory response to that emergency’ in A v Home Secretary in seeking to depart from liberties set out in the Human Rights Convention.

‘The steadfast judicial adherence to the rule of law in A v Home Secretary during the so-called war on terror, provides a striking contrast with the more deferential judicial passivity in Liversidge during World War II,’ he said.

Atkins’ dissent in wartime case Liversidge was quoted with clear pride: ‘In this country, amid the clash of arms, the laws are not silent.’

It was all very politely done – but there is no mistaking the ‘side’ Neuberger is on. Atkins, Hoffman, Bingham – these are the judges he invites us to respect. Denning and the ‘overbearing’ Diplock are less favourably referenced.

Neuberger presents as a discrete, learned diplomat. That he feels drawn to make these reflections so publicly should, I think, be read as evidence that he sees a version of the rule of law that is threatened by our times and which needs defending.