Last month, the Supreme Court ruled that employment tribunal fees, introduced during Chris Grayling’s tenure as Lord Chancellor, were unlawful. The fees, the court said, were set at an unaffordable level and this was contrary to the common law right of access to justice.
Given on the eve of Lord Neuberger’s last day of term as president of the Supreme Court, the ruling is testament to his efforts to bring the common law back to a more prominent position. Many saw the ruling as suddenly bringing back old English law principles front of stage in a judicial storyline where human rights and European law had become the main acts. For Lord Neuberger, however, it is but the latest staging post in a journey undertaken since he assumed presidency of the United Kingdom’s top court in 2012.
Bringing the common law “out of the shadows” has perhaps been the main improvement – along with more collegiate working – he has brought to the Supreme Court, he explains. When Lord Neuberger assumed office, he found a court that functioned properly as an organisation and did not otherwise need much change at all. But one thing he had been concerned to do was “to ensure that the common law, the law of the United Kingdom, was not put into the shade by human rights or EU law.”
Much of the relative decline of the common law, he offers, has come from the instant popularity of human rights law among practitioners and judges when the European Convention on Human Rights was implemented in the UK. “There was a period following the introduction of the Human Rights Act when, I think, everybody was so excited by this new area of law, they made a lot of decisions based on the Act which could equally have been made on the basis of established common law,” he remarks. “And a number of decisions we’ve made here in my time have emphasised that point.”
Indeed, when Unison first brought the fees case, the trade union’s arguments were almost entirely based on the breach of the principle of effectiveness under the European Court of Human Rights jurisprudence, along with some aspects of EU law. It was only when the case reached the Supreme Court that unlawfulness in common law became the main argument, giving Lord Reed, who gave the court’s judgment, the opportunity to reaffirm the role of the common law.
But other cases before the Unison decision had taken a similar route. In 2007, Times journalist Dominic Kennedy applied to the Charity Commission for the disclosure of documents in relation to George Galloway’s former charity the Mariam Appeal. The commission had carried out three inquiries into the charity’s operation. It refused the request, pointing to an absolute exemption under the Freedom of Information Act for inquiries.
The Supreme Court eventually held that there was a common law right of access to information held by public authorities, alongside the FOIA process. Until then, the newspaper’s claim against the commission’s refusal had been based on purely human rights law. “We said ‘no’, it’s a common law claim,” Lord Neuberger says, “and it should go back to the judge to decide on the basis of the common law. It’s very important that we decide cases on the common law.”
With Brexit looming, it could be easy to see some court decisions through the prism of the so-called repatriation of EU law and of the uncertainty this has prompted. Lord Thomas has made no secret about his concerns in one of his last public appearances before he retires as Lord Chief Justice in the autumn. Would it be right to look at the apparent resurgence of the common law in the same light?
“No. This is a concern, but no,” Lord Neuberger says. “When I came to this court as president in 2012, when Brexit wasn’t a glimmer in anyone’s eye, this was an aim of mine. But quite apart from that, it’s more to do with human rights than EU law. But the message I hope I leave this court with is that the common law is alive and well, and is not being eclipsed by human rights.”
But Lord Neuberger’s ‘buy British’ approach to law isn’t a rejection of human rights. “It’s fair to say that human rights have added to the common law. Privacy and freedom of speech were not in terms part of the common law. Now they are. I don’t want to give the impression that I’m against human rights. They’ve helped improve the common law, but we shouldn’t regard human rights as replacing the common law in any way.”
In fact, so entwined have the two sources of law become that they have fused into one another in places, with human rights principles being absorbed into the common law. Unexpectedly, this could strengthen civil liberties should the government decide to repeal the Human Rights Act or come out of the ECHR altogether – a not very likely prospect, according to Lord Neuberger. If the HRA were to be repealed, he says, it would likely be replaced by something else, “so we would have to look at what it’s replaced with”. “But if it was simply repealed, so that human rights would no longer be part of our law, I’ve no doubt that the common law would develop to fill any gaps which judges felt should be filled in. It would have to be done in a very cautious way. But I think there are certain irreversible changes that have been made.”
This takes us to a key characteristic of the common law. Where legislation can appear brutal, the common law evolves slowly, expanding boundaries in an organic manner. This is especially so with the Supreme Court, which tends to look at very defined legal issues. “Most of our cases are concerned with fairly narrow points, I’m glad to say, because the way the law should develop shouldn’t be by large headline grabbing, exciting cases; it’s by cases involving difficult points of law and difficult issues that have to be resolved in a sensible way and quietly enable the system to work better,” Lord Neuberger comments.
One example, he says, is the 2016 Patel v Mirza decision, which considered the extent to which illegality on the part of one party could be a bar to a claim. “What happens if you’ve got a claim that is otherwise perfectly valid but involves somebody having done something illegal? Should it as a matter of law completely kill your claim, and if so in what circumstances, or is it a more nuanced question. That’s not the sort of thing that grabs headlines but it’s an important issue, and a difficult one.”
Avoiding the headlines
At the opposite end, however, is the Miller case, blending highly technical constitutional issues with volatile headlines. The case broke record numbers of people coming to the Supreme Court to see it and viewers on the live video stream. It made headlines but it was also “almost inevitably” a good illustration of how the court works. “It was a constitutional case and it was highly politically charged,” says Lord Neuberger. “In that sense, we were on show, and that was the opportunity to show how the law works. A lot of people – particularly non-lawyers – have thought the hearing boring, technical, and drawn out, but I felt that was a good thing. It showed we were looking at the matter in a legal, technical, way, not in a politically prejudiced way, and that these issues are serious and not just headline grabbing. I hope, and I think, it made people realise that the law is a serious business and that judges are really concerned to understand the issues and arguments. That’s how it works, and it isn’t about headlines, and that we are here to protect the public interest according to the law.”
Like Lord Phillips before him, Lord Neuberger is keen that the Supreme Court should be an open organisation and that the justices should play their part in disseminating the message. More of them have given speeches and visited schools and universities – although Lord Neuberger wishes he had done more of it still.
People get a lot of exposure about what goes on in politics, he says, but less about what goes on in the courts other that then odd headline about particular cases. “If people aren’t educated about that, then it is the duty of those in senior positions to do their best to explain what we’re doing to the public. Particularly so with the Supreme Court, with its constitutional role and relative prominence, we have a duty to explain what we do and why.”
Giving speeches at universities, he confesses, largely involves “preaching to the converted” and that “getting the message across to people who are not naturally interested or informed is more difficult.” Headlines such as ‘Enemies of the people’ suggest that “in some quarters we’re not always getting through but that’s inevitable”, he says sanguine.
Attacks on judges are not new but the feeling among the judiciary is that they have risen to unprecedented levels since the Brexit case. Not only was the ‘Enemies of the people’ headline “completely inappropriate”, Lord Neuberger says, the danger with such headlines is that they are “bad for the rule of law”. This is particularly so at a sensitive economic time. “Having a judiciary which is second to none in the world is very important to our economy because of the amount of money and business brought into this country by our reputation for a first-class legal and judicial offering. If we start rubbishing our own judiciary we risk undermining that.”
So how far should judges go to explain their work? They could possibly do more, Lord Neuberger replies, but “where things begin to get more difficult and sensitive is us explaining our decisions, particularly in a common law system, where decisions of the courts are then the basis of the law.” The risk, he says, is that judges could unwittingly suggest something which appears to be different from their judgments. Lord Neuberger’s successor, Lady Hale, was accused of such a slip when she used the Miller case as an example of the tussle between the executive and parliament in a speech on constitutional law. “We ought to be explaining as much as we can,” Lord Neuberger says, “but the more one discusses the arguments in a case, the more you are in danger of infecting the value of the judgment”.
When he leaves the Supreme Court on 4 September, Lord Neuberger will be handing over an organisation that, on the surface, he has hardly changed. The basic model works, he says. But he has pushed the boundaries of the law, “slowly in a way that the common law would approve” and he has set in train the rejuvenation of the common law. He has also ushered in a culture of greater openness where judges are truly becoming public figures, even though he feels he and his colleagues may have been “a bit too cautious”. Making public comments will remain a fine line to tread, but no doubt more judges will feel encouraged to explore it further, not least Lord Neuberger’s successor, Lady Hale.
Jean-Yves Gilg is editor-in-chief of Solicitors Journal