The former Supreme Court president on legal aid cuts—and the vital importance of an independent judiciaryby David Neuberger / December 6, 2018 / Leave a comment
All modern civilised societies are built on two pillars: democracy and the rule of law. A critical lesson for 2019 is to remind ourselves of the importance of the second of these.
Democracy involves the legislature having to submit itself to regular elections. They engender great interest—politics is inherently headline-catching. But we hear much less about the rule of law: the people ultimately responsible for it, the judges, are not elected, and judging is not a headline-catching exercise.
With over 300 years of tranquillity at home, people take the rule of law for granted, and undervalue it. This could prove dangerous, for it is beginning to fray around the edges. Without it, private, public and commercial rights and responsibilities cannot be reliably enforced and society quickly becomes unjust, violent and poor.
It is of fundamental importance that judges are independent and robust, and that their courts are open and accessible.
Being able to see judges trying cases engenders confidence in the courts, essential for the rule of law. Seeing the courts at work dispassionately also provides a useful contrast to the partisanship of democratic politics. Accessibility means that people with grievances and those being sued must get access to legal advice and to courts. It is an affront to justice if people cannot understand or enforce their rights.
Judicial independence is crucial. No one, especially politicians, should have any influence over a judge. But judges should also be independent in a wider sense. Administering the law involves rigour, humanity, common sense, and not giving in to short-term public pressures. So, judges must also be robust in terms of both intelligence and character. If they are not, respect for the law will crumble, as will the UK’s international reputation for legal services, which is vital to our economy.
Recent events have highlighted how these requirements are both vital and under threat.
Extensive reductions in legal aid, especially since 2012, mean that many people must choose between not enforcing their rights (unacceptable) and acting for themselves (unjust). Mitigating steps have been taken, but they have not eliminated the access to justice deficit. The government has also substantially increased court fees—so unreasonably in employment cases that the courts intervened. Especially since…