Sean Jones QC on Lord Neuberger and the government

Following an extraordinary interview with the BBC’s Clive Coleman, a lot of people are annoyed with Lord Neuberger, president of the Supreme Court.

Some are angry about what he said; some are angry that he waited so long to say it and some are angry that he has said anything at all, believing that judges should shun journalists and restrict expressions of opinion to judgments. Given that he has been trending strongly on Twitter it is possible even Justin Bieber now bears a grudge.

In the course of the interview, he advances steadily through some of the most controversial legal issues of the moment: ministers criticising judges - stop doing it; legal aid cuts - they undermine the rule of law; secret courts - they entail a “real problem” and lack of diversity amongst Supreme Court judges - he regrets and is embarrassed by it.

Whilst his description of Home Secretary Theresa May’s recent criticism of judges as “unfortunate” may seem studiedly mild to a non-lawyer, to those more used to parsing the measured language of the bench the rebuke is plain.

Even to a non-lawyer his suggestion that damage done to access to justice by legal aid cuts might lead people to take the law “into their own hands” catches the attention.

His concerns have a common thread: the importance of the rule of law and the legitimacy it confers on the institutions of government. No government likes to be challenged.

They have policies to implement and goals to achieve and limits on their power to act are so … well, so “limiting”. Those limits, the lines that the Law draws around governmental power, are an embodiment of the rule of law. Discontent with those limits is a theme of the Government’s reform agenda. Judicial review and the Human Rights Act have both been identified as requiring review.

Access to justice is also a rule of law issue.

As Lord Bingham put it: “Denial of legal protection to the poor litigant who cannot afford to pay is … [an] … enemy of the rule of law.” What good are laws you cannot afford to enforce?

In his interview, Lord Neuberger makes it clear that the consequence of restricting access to justice is not simply that, in the interests of costs savings, some must do without their day in court. What one risks is that people stop believing in justice at all. Access to justice is not a luxury; it is a fundamental requirement of genuine democracy.

Within hours of Lord Neuberger’s warning, the Justice Secretary Chris Grayling stepped forward to announce further cuts to the £2 billion Criminal Legal Aid budget.

11KBW barrister Sean Jones QC