No legislative change is needed to enable the Supreme Court to deviate from rulings of the European Court of Human Rights, the Supreme Court's president told peers today.
Giving evidence to the House of Lords constitutional committee, Lord Neuberger said that under Section 2 of the Human Rights Act 1998 the court must have regard to decisions of the European Court Human Rights, in Strasbourg - but is not required to follow them.
Politicians and commentators, including Labour’s shadow justice secretary Sadiq Khan, have suggested that legislative change is needed to maintain the UK court's supremacy.
Neuberger said there is 'a presumption' that if a number of decisions from the ECtHR all point in the ‘same way’ or there is a decision of the Grand Chamber, the Supreme Court will follow it. However in the 14 years since the HRA, the relationship with the European court has ‘developed and matured’, with the Supreme Court becoming ‘more individual and self-confident’.
‘In the end we are the court in this country that decides issues,’ he said. Neuberger added that amending the legislation might send a message to the court, but doing so is not ‘necessary’.
On judicial review curbs, Neuberger and his deputy Lady Hale denied a suggestion made by Labour’s former attorney general Lord Goldsmith that the courts have been too ‘timid and diffident’ in standing up to the executive, compared with courts in countries such as Pakistan.
Neuberger said the joint human rights committee’s report stating that the cuts to judicial review undermine the rule of law, was ‘fair comment’.
Stressing the importance to democratic society of a functioning judicial review system, Neuberger said he understood the lord chancellor’s concerns and the limited funds available. He said there will always be hopeless cases taken, but said ‘such is the price for a healthy judicial review system’.
On Chris Grayling’s role as lord chancellor, Neuberger said he had ‘no specific problem’ with the lord chancellor not being a lawyer.
He told the committee that he meets Grayling four times a year and said they have a ‘slight’ amount to discuss.
On the court's finances, Neuberger expressed ‘concern’ about the future. He told peers 80% of the funding goes on the building and paying the salaries and pensions of the justices, so any future cuts will have to come from the other 20%.
Lady Hale voiced concern over the ‘serious difficulties’ resulting from legal aid cuts and increased court and tribunal fees. People with small claims for unpaid wages, she said, have been deterred from making claims due to the cost.
In a bid to increase the diversity of the senior judiciary, Hale said it is necessary to increase the pool of people eligible for appointment to the Supreme Court, with scope for direct entry from barristers and others.
She stressed the need to appoint the best people, but said she did not accept that the best are all ‘white male former barristers’.