• “The role of the Supreme Court in turbulent times” inaugural Lord Toulson lecture at Surrey – notes
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Lord Neuberger former President of the UK Supreme Court who retired in 2017 and presided over Miller vs Government in Article 50 case towards the end of a very distinguished career.
I don’t know if lecture recorded but will share link if / when.
It was nice to see him engaging with the law students and interesting lecture on one of most important days since the referendum in terms of consequences. At time of writing I haven’t seen the results of tonight’s vote.
Please forgive straggly notes but posting because of timeliness:

Everything has to be set / assessed in context

Rule of law Lord Bingham book
Can mean different things, not timeless definition
Systems are made primarily by parliament, administered by civil service, judges apply

Properly made legislation made open, published and made by democratic legislature, not corrupt.

Fundamental that judges are independent not influenced improperly by the govt.

Confusing because minister runs a civil service dept. In US can’t be in cabinet and in Parliament.

Executive makes decision, Parliament makes the law. Gina Miller decision in Supreme Court.

If Exec pull us out of EU laws but only Parliament can change the law. Some confusion from EU Parliament Act.

Judges – economic success and social cohesion.

Deciding claims by citizens that their rights have been harmed by govt – local and national as well as protection against improper claims.

In most countries there is a written constitution. Only UK, Israel and NZ don’t have one.

We have reacted to crises and socio-economic changes.

We do have constitutional rules – Parliamentary supremacy in making laws and independent judiciary. But not clear, taken for granted.

Magna Carta – 68 originally now 3 left. Courts less powerful now. In US Supreme Court can overrule Senate & Congress.

Get round it – don’t overrule it, interpret it and accept political cost in absence of express language. So some influence.

Common law – uniquely English concept – used in Commonwealth and some of in US. Judges can develop some of the law. Can modify, bring up to date on previous judgements – one of reasons why UK legal system is successful especially in commercial law. 40% of commercial contracts use English law.

1966-2016 huge changes in legal landscape, then cases mushroomed – people being treated unfairly by govt – due to more executive control and disruptive 60s.

Judges became much more active and influential. Then late 90s, big changes e.g. devolution – 3 Parliaments outside Westminster and powers devolved by statute. So judges having constitutional role in deciding devolved powers. Particular role for Supreme Court, so devolved courts initially before SC. Only UK court is Supreme Court.

2005 Constitutional Reform Act – judges more power from Executive, Lord Chanceller role replaced by President of Supreme Court and Lord Chief Justice for England & Wales.

2005 Creation of Supreme Court replacing top Lords Court. Public recognise court and proceedings televised, easier physical access than HOC/HOL.

Freedom of Information Act

EU Convention on HR became law in 2000. Binding on this country on international law but not under statute until Parliament decided. Introduced new rights and extensions of existing rights. Required judges to look more carefully at what the govt was doing.

Pushed Common Law into the cupboard for a bit. Roger Toulson realised this was wrong, revived common law. Showed that HR & CL are complementary.

In other countries who have constitutions, rarely refer to HR because already there.

Court of justice overruling us seen as alien because we have not been invaded, tyrannies. Other EU countries see it as pooling not losing sovereignty.

Current situation unique outside war time. Preceded by referendum. Caused problem to system because majority of MPs wanted to stay in EU but result went the other way (first time in UK referendum this happened).

Statute referendum act said we had to have one but didn’t say what the effects would be unlike Scottish independence referendum which had a schedule. Left in the air.

On leaving side – not going to have deliver what they said with a referendum. In theory with GE have to do what is in manifesto. Parliament not used to and undermines confusion.

Politically questionable to serve a notice before deciding what will happen. Some political pressure acknowledged.

Problem in negotiations – govt doesn’t understand that EU see laws of Union are complied with because it is a legal construct. Failure of meeting of minds.

Now another period of dysfunction where Parliament about to make foreign policy e.g. vote tonight.

What law faces in long term – effect of electronic media. Slander. Loss of privacy. Globalisation of businesses, tax havens, gig economy. Internationalalisation of law. Moral problems and AI, genetic manipulation.

One of biggest problems is speed of changes and law moves slowly – cases takes time to get to court, parliament takes time to decide. Rule of law not under threat but under challenge.

Rule of law – may not be noisy and exciting, but stabilising and we need to keep it.

Not good at doing horses for courses. Need proportionate justice – Lord Rupert Jackson leading.

Written constitution – argument getting stronger – getting more complicated – could it all be put together?

Possibly but nervous where judges can overrule Parliament. Seems to work in US but doesn’t mean it will work here. Also another massive Brexit argument. Think on the whole, if it’s not broken don’t fix it, can rationalise legislation but don’t need a constitution.

Can appoint an English judge to apply Common law in other countries now and will also apply in future regardless of Brexit decisions.

Can have expert witness who is bad at giving evidence. Juries may be easily swayed by good advocacy. In perfect world will have two good advocates.

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