The increased cost and complexity of litigation coupled with the shrinking of legal aid means that access to justice is ‘very much at risk’, the president of the Supreme Court has said. 

In a speech to the Northern Ireland Assembly’s justice committee, posted on the Supreme Court website, Lord Neuberger (pictured) addressed what he called ‘the vexed question of access to justice in an age of austerity’.

A combination of the rising cost of legal services and spending cuts creates ‘something of a perfect storm’, he said. However he described as ‘good news’ proposals to streamline the system of litigating smaller claims and backed the government’s plan to reform courts in England and Wales. 

Neuberger’s speech, which ranged from IT strategy to the question of judicial activism, also defended his recent statement that the UK does not have a constitution.

‘The short answer to that point is, as it is with so many arguments, that it depends what you mean by a constitution,’ he said. ‘On any view, the UK does not have a coherent or embedded constitution; it has some constitutional conventions and some quasi-constitutional statutes, and they are conventions and statutes which can be changed or repealed by parliament.’

Parliamentary sovereignty in turn means that complaints about ‘unelected judges’ thwarting the will of democratically elected governments are misguided, he said.

However he admitted that the Supreme Court had inevitably assumed a more visible constitutional role than its predecessor, the Appellate Committee of the House of Lords. 

He passed quickly over ‘the best-known aspect of our expansion’, human rights, in the light of what he called a ‘rather feverish’ political climate. However he pointed out that devolution has also increased the court’s role.

‘In the event of a dispute or a challenge, the Supreme Court now decides whether the power to legislate in a particular area or on a certain topic has been devolved or whether it remains at Westminster. That is a constitutional role on any view.’

Neuberger also contrasted the style of common law judgments with those of the European Court of Justice, where he said justices ‘have to give a single, unanimous judgment, even if some of them disagree’.

As a result, their judgments are ‘not infrequently internally inconsistent, and occasionally evade the legal question actually raised in order to arrive at a mutually acceptable product’. By contrast the multiplicity of rulings in the common law system can be confusing and tedious, ‘but, whatever else may be said about it, our system produces more entertaining and stylish judgments’.

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