Holding the Line Against Tyranny and Anarchy (Constitution Committee Report)
Lord Neuberger of Abbotsbury Excerpts(2 weeks, 6 days ago)
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Lord Neuberger of Abbotsbury (CB)
My Lords, I echo other non-contributors who have expressed appreciation of the outstanding report produced by the noble Lord, Lord Strathclyde, and his committee. I thank them for the very substantial work that clearly went into it. The wide scope of the rule of law, and the multifarious topics it covers, were well illustrated by the excellent speeches that preceded this one. I agreed with virtually all that was said—“virtually” being a cautious lawyer’s word in these circumstances.
The rule of law is not only an essential ingredient; it may be the most important ingredient of a civilised, just and peaceful society. It is, as the noble Lord, Lord Strathclyde, mentioned in his speech, of serious economic value to people. The 2024 Nobel Prize was awarded to three economists who demonstrated that the rule of law and sound institutions are fundamental to sustained long-term growth. This is supported by a 2015 survey of more than 300 large international companies carried out by the Bingham Centre for the Rule of Law, of which I have the honour of being president, and the Economist Intelligence Unit. The survey established that the rule of law was the third most important factor in deciding where to invest, behind the ease of doing business and a stable political environment—and both of those are strongly influenced by the rule of law.
However, the rule of law is as potentially precarious as it is precious. Thus, it is not something that has much traction with the average citizen. Ask him or her, “Which is more important—that the UK retains the rule of law or that England win the World Cup?”, and I fear that the latter might be the runaway winner. Particularly in a democracy, what the average citizen thinks is pretty important. We need to explain to people, above all the young—as a number of people here, particularly the noble Baroness, Lady Laing of Elderslie, have emphasised—why the rule of law matters and what it can do for them. As the committee rightly records:
“Public legal education is a key enabler of a rule of law culture”.
Education in this context should concentrate not on high-falutin’ principles but on practicalities that non-lawyers care about. But education is a longish-term project, and we have to face the fact that, with a general election no more than three years away, we may be in a precarious situation.
The precariousness is all the greater under the UK’s unique constitutional arrangements. Unlike almost every other country, we have no codified, overriding constitution; instead, as the noble Viscount, Lord Stansgate, said, we have parliamentary supremacy, which means that Parliament—in practice, the other place—can do what it wants. Any safeguard, whether statutory, judge-made or founded on convention, could be swept away in an afternoon by a simple majority of constitutionally challenged parliamentarians.
We do not have separation of powers. A Prime Minister and a Cabinet can often get Members of the other place to vote the way they want, which reinforces the precariousness. If an illiberal Government ever commanded a majority, remarkably little—by way of checks—stands in their way. If the rule of law can be trampled on by the head of the Executive in a country such as the United States, with its overriding constitution and its separation of powers, how much easier would it be to trample on the rule of law in this country? The flexible constitution that has served us so well for over three centuries may also contain the seeds of its own destruction.
I mentioned the relative absence of checks on the Executive. One such check is the Human Rights Act, a topic on which this report, otherwise very thorough, is strangely quiet. In a country without overriding constitutional principles, the existence of a statutory document that enshrines fundamental individual rights is essential for the rule of law. The indirect incorporation of the European convention into our law by the cleverly drafted statute ensures that fundamental rights are enshrined in our domestic law and can be reinforced by the courts but without impugning or impinging on parliamentary supremacy.
Although I do not agree with every Strasbourg court judgment and I believe that the convention could do with some overhauling, I am very much against withdrawing from the convention. If we decided to join Russia and Belarus in being the only European countries outside the convention, we would be undermining the rule of law in the UK if we did not have, as we withdrew, an equivalent set of human rights involving similarly effective, constitutionally appropriate judicial powers.
Talking of judges, I do not have much to add to what has been said by previous speakers, but it is essential that we maintain the independence of the judiciary at all levels and in all ways. As the US experience has again shown us, it is essential that we keep party politics away from the judiciary and the judiciary away from party politics. Judges have no democratic legitimacy and should be appropriately cautious about stepping into policy issues. Sometimes they are called to do so—as with the two Miller cases where they had to face a dispute between the Executive and the legislature. Apart from in such cases, they should keep out of political issues.
I have little to add to what has been said, apart from adding my fond memories of Lord Mackay of Clashfern. If ever anyone stood for the rule of law in an acceptable, coherent and attractive way, it was him. It is appropriate that we are having this debate in the week when he sadly died.
Assisted Dying Bill [HL]
Lord Neuberger of Abbotsbury ExcerptsFriday 22nd October 2021
(4 years, 9 months ago)
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Baroness Stroud (Con)
My Lords, I deeply respect the noble Baroness, Lady Meacher, and particularly her desire to reduce suffering—
Lord Neuberger of Abbotsbury (CB)
I thank the noble Baroness for that introduction. Like the noble and learned Lord, Lord Mance, I was one of the judges in the Supreme Court Nicklinson case. The more I considered the extensive facts and the arguments, the clearer it became to me as judge that it was inappropriate, at least at that stage, for the courts to seek to force Parliament to change the law on assisted suicide and the clearer it became to me as citizen that Parliament should change the law.
There are many important human rights but, in the end, they can all be encapsulated in a single, overriding right which has been referred to more than once today: the right to personal autonomy. Personal autonomy has no more important aspect than the right to control your very existence. It is your life to deal with as you see fit. If you want to end your life, you are entitled to do so, and if you have a fundamental right to end your life, you must require very powerful reasons why you should be denied assistance if you need to exercise that right and cannot do it without assistance. When you hear of heartrending experiences, such as those of the noble Baroness, Lady Symons, and the noble Lord, Lord Ramsbotham, the principal justification for the right to be assisted if you wish to kill yourself is reinforced by considerations of humanity.
The case for the Bill is also supported by the way that we permit richer people who can afford it to be taken abroad to achieve an assisted death. It is supported by the fact that we freely allow people to refuse treatment. It is supported by the way in which we deal with suffering animals, and by the excellent point made by the noble Baroness, Lady Davidson, about medical intervention and the start of life. It is also supported by the public.
The contrary argument, and the only one, I have to say, that resonates with me, is the risk of abuse. All freedoms can be abused, and we deal with that not by removing the freedoms but by legislating against the abuse. The Bill provides for full protection and if, as some have suggested, it is not full enough or could be improved, the Bill can be amended; it should not be ended. The fact that there will be occasional abuses, as there always are in a free society, is far outweighed by the enormous amount of suffering, relatively speaking, that will be ended if the Bill becomes law.
I will end with two brief points. First, I do not read Clause 4(4)(c) as permitting a third party to administer the killing medicine. If it does so provide, it can be amended. Finally, there has been a suggestion that this is inappropriate for judges. Three former senior judges, including myself, have so far spoken in this debate and supported the Bill, which speaks for itself. The noble Lord, Lord Wilson, a highly experienced family judge, supported the involvement of judges in our judgment in the Nicklinson case. Judges are called as a matter of principle and practice to decide on difficult, sensitive cases. It is fitting that they should be involved in this exercise. I support the Bill.